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CASES  ON  THE  LAW  OF  PROPERTY 

VOL.     I. 

PERSONAL  PROPERTY. 

By  Harry  A.  Bigelow,  Professor  of  Law  in  the 
University  of  Chicago. 

VOL.    IL 

RIGHTS  IN  LAND. 

By  Harry  A.  Bigelow. 

VOL.  in. 

TITLES  TO  REAL  PROPERTY. 

By  Ralph  W.  Aigler,  Professor  of  L&w  in  the 
University   of   Michigan. 

VOL.  IV. 

FUTURE  INTERESTS.      - 

By  Albert  M.  Kales,  of  the  Chicago  Bar,  former- 
ly Professor  of  Law  in  Harvard  University. 

VOL.    V. 

WILLS,  DESCENT,  AND  ADMINISTRA- 

TION. 

By  George  P.  Gostigan,  Jr.,  Professor  of  Law  in 
Northwestern  University. 

2  Bio.Pbof.  (il) 


CASES  ON  THE  LAW  OF  PROPERTY 
VOLUME  2 

INTRODUCTION  TO  THE  LAW  OF 
REAL  PROPERTY 


RIGHTS  IN  LAND 


BY  HARRY  A.  BIGELOW 

PBOFESSOB  OF  LAW  IN  THE  UNIVEBSITT  OF  CHICAGO 


AMERICAN  CASEBOOK  SERIES 

WILLIAM  R.  VANCE 

GENERAL  EDITOB 


ST.     PAUL 

WEST  PUBLISHING  COMPANY 
1919 


Copyright,  1919 

BT 

WEST  PUBLISHING  COMPANY 

(2BIG.PR0P.) 


^ ■//■//  >v^..^^/i;  >..-, 


f  D 


THE  AMERICAN  CASEBOOK  SERIES 


The  first  of  the  American  Casebook  Series,  Mikell's  Cases  on  Crim- 
inal Law,  issued  in  December,  1908,  contained  in  its  preface  an  able 
argument  by  Mr.  James  Brown  Scott,  the  General  Editor  of  the  Se- 
ries, in  favor  of  the  case  method  of  law  teaching.  Until  1915  this 
preface  appeared  in  each  of  the  volumes  published  in  the  series. 
But  the  teachers  of  law  have  moved  onward,  and  the  argument 
that  was  necessary  in  1908  has  now  become  needless.  That  such 
is  the  case  becomes  strikingly  manifest  to  one  examining  three  im- 
portant documents  that  fittingly  mark  the  progress  of  legal  education 
in  America.  In  1893  the  United  States  Bureau  of  Education  pub- 
lished a  report  on  Legal  Education  prepared  by  the  American  Bar  As- 
sociation's Committee  on  Legal  Education,  and  manifestly  the  work 
of  that  Committee's  accomplished  chairman,  William  G.  Hammond, 
in  which  the  three  methods  of  teaching  law  then  in  vogue — that  is,  by 
lectures,  by  text-book,  and  by  selected  cases — were  described  and  com- 
mented upon,  but  without  indication  of  preference.  The  next  report 
of  the  Bureau  of  Education  dealing  with  legal  education,  published 
in  1914,  contains  these  unequivocal  statements: 

"To-day  the  case  method  forms  the  principal,  if  not  the  exclusive, 
method  of  teaching  in  nearly  all  of  the  stronger  law  schools  of  the 
country.  Lectures  on  special  subjects  are  of  course  still  delivered  in 
all  law  schools,  and  this  doubtless  always  will  be  the  case.  But  for 
staple  instruction  in  the  important  branches  of  common  law  the  case 
has  proved  itself  as  the  best  available  material  for  use  practically  ev- 
erywhere. *  *  *  The  case  method  is  to-day  the  principal  method 
of  instruction  in  the  great  majority  of  the  schools  of  this  country." 

But  the  most  striking  evidence  of  the  present  stage  of  development 
of  legal  instruction  in  American  Law  Schools  is  to  be  found  in  the 
special  report,  made  by  Professor  Redlich  to  the  Carnegie  Foundation 
for  the  Advancement  of  Teaching,  on  "The  Case  Method  in  American 
Law  Schools."  Professor  Redlich.  of  the  Faculty  of  Law  in  the  Uni- 
versity of  Vienna,  was  brought  to  this  country  to  make  a  special  study 
of  methods  of  legal  instruction  in  the  United  States  from  the  stand- 
point of  one  free  from  those  prejudices  necessarily  engendered  in 
American  teachers  through  their  relation  to  the  struggle  for  supremacy 
so  long,  and  at  one  time  so  vehemently,  waged  among  the  rival  sys- 
tems. From  this  masterly  report,  so  replete  with  brilliant,  analysis 
and  discriminating  comment,  the  following  brief  extracts  are  taken. 
Speaking  of  the  text-book  method  Professor  Redlich  says : 

"The  principles  are  laid  down  in  the  text-book  and  in  the  profes- 
sor's lectures,  ready  made  and  neatly  rounded,  the  predigested  essence 

(V) 


Vi  PREFACE 

of  many  judicial  decisions.  The  pupil  has  simply  to  accept  them  and 
to  inscribe  them  so  far  as  possible  in  his  memory.  In  this  way  the 
scientific  element  of  instruction  is  apparently  excluded  from  the  very 
first.  Even  though  the  representatives  of  this  instruction  certainly  do 
regard  law  as  a  science — that  is  to  say,  as  a  system  of  thought,  a  group- 
ing of  concepts  to  be  satisfactorily  explained  by  historical  research  and 
logical  deduction — they  are  not  willing  to  teach  this  science,  but  only 
its  results.  The  inevitable  danger  which  appears  to  accompany  this 
method  of  teaching  is  that  of  developing  a  mechanical,  superficial  in- 
struction in  abstract  maxims,  instead  of  a  genuine  intellectual  probing 
of  the  subject-matter  of  the  law,  fulfilling  the  requirements  of  a 
science." 

Turning  to  the  case  method  Professor  Redlich  comments  as  follows : 

"It  emphasizes  the  scientific  character  of  legal  thought;  it  goes  now 
a  step  further,  however,  and  demands  that  law,  just  because  it  is  a 
science,  must  also  be  taught  scientifically.  From  this  point  of  view  it 
very  properly  rejects  the  elementary  school  type  of  existing  legal  edu- 
cation as  inadequate  to  develop  the  specific  legal  mode  of  thinking,  as 
inadequate  to  make  the  basis,  the  logical  foundation,  of  the  separate 
legal  principles  really  intelligible  to  the  students.  Consequently,  as  the 
method  was  developed,  it  laid  the  main  emphasis  upon  precisely  that 
aspect  of  the  training  which  the  older  text-book  school  entirely  neg- 
lected— the  training  of  the  student  in  intellectual  independence,  in  in- 
dividual thinking,  in  digging  out  the  principles  through  penetrating 
analysis  of  the  material  found  within  separate  cases ;  material  which 
contains,  all  mixed  in  with  one  another,  both  the  facts,  as  life  creates 
them,  which  generate  the  law,  and  at  the  same  time  rules  of  the  law 
itself,  component  parts  of  the  general  system.  In  the  fact  that,  as  has 
been  said  before,  it  has  actually  accomplished"  this  purpose,  lies  the 
great  success  of  the  case  method.  For  it  really  teaches  the  pupil  to 
think  in  the  way  that  any  practical  lawyer — whether  dealing  with  writ- 
ten or  with  unwritten  law — ought  to  and  has  to  think.  It  prepares  the 
student  in  precisely  the  way  which,  in  a  country  of  case  law,  leads  to 
full  powers  of  legal  understanding  and  legal  acumen ;  that  is  to  say, 
by  making  the  law  pupil  familiar  with  the  law  through  incessant  prac- 
tice in  the  analysis  of  law  cases,  where  the  concepts,  principles,  and 
rules  of  Anglo-American  law  are  recorded,  not  as  dry  abstractions,  but 
as  cardinal  realities  in  the  inexhaustibly  rich,  ceaselessly  fluctuating, 
social  and  economic  life  of  man.  Thus  in  the  modern  American  law 
school  professional  practice  is  preceded  by  a  genuine  course  of  study, 
the  methods  of  which  are  perfectly  adapted  to  the  nature  of  the  com- 
mon law." 

The  general  purpose  and  scope  of  this  series  were  clearly  stated  in 
the  original  announcement: 

"The  General  Editor  takes  pleasure  in  announcing  a  series  of  schol- 
arly casebooks,  prepared  with  special  reference  to  the  needs  and  limi- 


PREFACE  Vll 

tations  of  the  classroom,  on  the  fundamental  subjects  of  legal  educa- 
tion, which,  through  a  judicious  rearrangement  of  emphasis,  shall  pro- 
vide adequate  training  combined  with  a  thorough  knowledge  of  the 
general  principles  of  the  subject.  The  collection  will  develop  the  law 
historically  and  scientifically;  English  cases  will  give  the  origin  and 
development  of  the  law  in  England;  American  cases  will  trace  its  ex- 
pansion and  modification  in  America ;  notes  and  annotations  will  sug- 
gest phases  omitted  in  the  printed  case.  Cumulative  references  will  be 
avoided,  for  the  footnote  may  not  hope  to  rival  the  digest.  The  law 
will  thus  be  presented  as  an  organic  growth,  and  the  necessary  con- 
nection between  the  past  and  the  present  will  be  obvious. 

''The  importance  and  difficulty  of  the  subject  as  well  as  the  time  that 
can  properly  be  devoted  to  it  will  be  carefully  considered  so  that  each 
book  may  be  completed  within  the  time  allotted  to  the  particular  sub- 
ject. *  *  *  If  it  be  granted  that  all,  or  nearly  all,  the  studies  re- 
quired for  admission  to  the  bar  should  be  studied  in  course  by  every 
student — and  the  soundness  oi  this  contention  can  hardly  be  seriously 
doubted — it  follows  necessarily  that  the  preparation  and  publication  of 
collections  of  cases  exactly  adapted  to  the  purpose  woul,d  be  a  genuine 
and  by  no  means  unimportant  service  to  the  cause  of  legal  education. 
And  this  result  can  best  be  obtained  by  the  preparation  of  a  systematic 
series  of  casebooks  constructed  upon  a  uniform  plan  under  the  super- 
vision of  an  editor  in  chief.     *     *     * 

"The  preparation  of  the  casebooks  has  been  intrusted  to  experienced 
and  well-known  teachers  of  the  various  subjects  included,  so  that  the 
experience  of  the  classroom  and  the  needs  of  the  students  will  furnish 
a  sound  basis  of  selection." 

Since  this  announcement  of  the  Series  was  first  made  there  have 
been  published  books  on  the  following  subjects: 

Administrative  Lazv.      By  Ernst   Freund,   Professor  of   Law   in  the 

University  of  Chicago. 
Agency.    By  Edwin  C.  Goddard,  Professor  of  Law  in  the  University 

of  Michigan. 
Bills  and  Notes.    Second  Edition.    By  Howard  L.  Smiih,  Professor  of 

Law  in  the  University  of  Wisconsin,  and  Underbill  Moore,  Pro- 
fessor of  Law  in  Columbia  University. 
Carriers.    By  Frederick  Green,  Professor  of  Law  in  the  University  of 

Illinois. 
Conflict   of  Lazvs.     By   Ernest   G.   Lorenzen,    Professor  of   Law    in 

Yale  University. 
Constitutional  Law.     By  James  Parker  Hall,  Dean  of  the  Faculty  of 

Law  in  the  University  of  Chicago. 
Contracts.    By  Arthur  L-  Corbin,  Professor  of  Law  in  Yale  University. 


VIU  PREFACE 

Corporations.  By  Harry  S.  Richards,  Dean  of  the  Faculty  of  Law  in 
the  University  of  Wisconsin. 

Criminal  Law.  By  William  E.  Mikell,  Dean  of  the  Faculty  of  Law  in 
the  University  of  Pennsylvania. 

Criminal  Procedure.  By  William  E.  Mikell,  Dean  of  the  Faculty  of 
Law  in  the  University  of  Pennsylvania. 

Damages.  By  Floyd  R.  Mechem,  Professor  of  Law  in  the  University 
of  Chicago,  and  Barry  Gilbert,  of  the  Chicago  Bar. 

Equity.  By  George  H.  Boke,  formerly  Professor  of  Law  in  the  Uni- 
versity of  California. 

Equity.  By  Walter  Wheeler  Cook,  Professor  of  Law  in  Yale  Uni- 
versity.   Volume  L     Volumes  2  and  3  in  preparation. 

Evidence.  By  Edward  W.  Hinton,  Professor  of  Law  in  the  Universi- 
ty of  Chicago. 

Insurance.  By  William  R.  Vance,  Professor  of  Law  in  Yale  Uni- 
versity. 

International  Law.  By  James  Brown  Scott,  Lecturer  on  International 
Law  and  the  Foreign  Relations  of  the  United  States  in  the  School 
of  Foreign  Service,  Georgetown  University. 

Legal  Ethics,  Cases  and  Other  Authorities  on.  By  George  P.  Costigan, 
Jr.,  Professor  of  Law  in  the  University  of  California. 

Partnership.  By  Eugene  A.  Gilmore,  Professor  of  Law  in  the  Uni- 
versity of  Wisconsin. 

Persons  (including  Marriage  and  Divorce).  By  Albert  M.  Kales,  late  of 
the  Chicago  Bar,  and  Chester  G.  Vernier,  Professor  of  Law  in 
Stanford  University. 

Pleading  (Common  Law).  By  Clarke  B.  Whittier,  Professor  of  Law 
in  Stanford  University,  and  Edmund  M.  Morgan,  Professor,  of 
Law  in  Yale  University. 

Property  (Future  Interests).  By  Albert  M.  Kales,  late  of  the  Chicago 
Bar. 

Property  (Personal).  By  Harry  A.  Bigelow,  Professor  of  Law  in  the 
University  of  Chicago. 

Property  (Rights  in  Land).  By  Harry  A.  Bigelow,  Professor  of 
Law  in  the  University  of  Chicago. 

Property  (Titles  to  Real  Property).  By  Ralph  W.  Aigler,  Professor 
of  Law  in  the  University  of  Michigan, 

Property  (Wills,  Descent,  and  Administration) .  By  George  P.  Costi- 
gan, Jr.,  Professor  of  Law  in  the  University  of  California. 

Quasi  Contracts.  By  Edward  S.  Thurston,  Professor  of  Law  in  Yale 
University. 

Sales.  By  Frederic  C.  Woodward,  Professor  of  Law  in  the  University 
of  Chicago. 


PREFACB  IX 

Suretyship.  By  Crawford  D.  Hening,  formerly  Professor  of  Law 
in  the  University  of  Pennsylvania. 

Torts.  By  Charles  M.  Hepburn,  Dean  of  the  Faculty  of  Law  in  the 
University  of  Indiana. 

Trade  Regulation.  By  Herman  OHphant,  Professor  of  Law  in  Colum- 
bia University. 

Trjtsts.  By  Thaddeus  D,  Kenneson,  Professor  of  Law  in  the  Univer- 
sity of  New  York. 

It  is  earnestly  hoped  and  believed  that  the  books  thus  far  published 
in  this  series,  with  the  sincere  purpose  of  furthering  scientific  training 
in  the  law,  have  not  been  without  their  influence  in  bringing  about  a 
fuller  understanding  and  a  wider  use  of  the  case  method. 

William  R.  Vance, 

General  Editor. 

t 


T> 


•i^J  JiS^ 


INTRODUCTION 

TO 

THE  LAW  OF  REAL  PROPERTY 


BY  HARRY  A.  BIGELOW 

PROFESSOR  OF  LAW   IN  THE  UNIVERSITY  OF  CHICAGO 


AMERICAN  CASEBOOK  SERIES 

WILLIAM  R.VANCE 

GENERAL   EDITOR 


ST.    PAUL 

WEST  PUBLISHING  COMPANY 
1919 


COPTBIGHT,  1919 
BT 

WEST   PUBLISHING  COMPANY 
(Big. Int.) 


TO 

THE  SILENT  PARTNER 

(ili) 


AUTHOR'S  PREFATORY  NOTE 


This  treatise  has  been  written  with  the  thought  constantly  in  mind 
that  it  is  to  serve  as  the  medium  by  which  students,  either  wholly  ig- 
norant of  law  or  at  best  with  a  slight  knowledge  of  it,  are  to  begin 
the  study  of  one  of  its  most  difficult  branches.  Such  students  re- 
quire above  all  else  simplicity  of  statement  and  an  easily  understand- 
able outline,  that  will  furnish  a  background  against  which  the  instruc- 
tor can  fill  in  details  and  refinements  as  tlie  capacity  of  the  class  per- 
mits. Consequently  the  doctrines  of  the  older  law  have  been  stated 
simply,  and  as  far  as  possible  in  nontechnical  language.  The  extent 
to  which  they  are  to  be  expanded  is  a  matter  that  the  instructor  will 
settle  for  himself. 

The  treatise  is  only  an  introduction  to  the  law  of  real  property  in 
another  sense,  viz.,  it  stops  substantially  with  the  18th  century  law. 
No  attempt  has  been  made  to  do  more  than  hint  at  the  modern  develop- 
ments of  the  law  of  property.  To  go  further  would  be  to  encroach 
upon  the  function  of  the  various  volumes  that  make  up  the  series  to 
which  this  is  a  preface. 

Harry  A.  Bigki,ow. 
The  Univebsity  of  Chicago  Law  School, 
July  17,  1919. 

(iv) 


TABLE  OF   CONTENTS 


CHAPTER  I 


The  FteuDAL  System 

Section  Page 

1.  Introduction    1 

2.  Military    Tenure. ^ * 4 

3.  Socage    Tenure Qla,'\\v;^^^',<^). 8 

4.  Frankalmoyn    Tenure.' . . . .  KiJ<<r^^,-ti^^^. 10 


5.  Copyhold    Tenure u 10 

6.  Statutory  Changes  in  the  Feudal  System 11 

7.  Tenure  In  the  United  States 17 

CHAPTER  II 

Estates 

Introduction    19 

Fees    Simple ■ 19 

Fees  Conditional  and  Fees  Tail 22 

Determinable    Fees 25 

Estates  for  Life 26 

Estates  Less  than   Freehold , 30 

Seisin  and  Possession 32 

Transfer  on  Seisin  and  Possession 34 


CHAPTER  III 

NONPOSSESSOKY    INTERESTS    IN    LaND 

1.  Introduction    36 

2.  Reversions  and  Remainders 38 

3.  Conditional  Limitations  and  Rights  of  Entry 43 

4.  Incorporeal    Hereditaments 44 

5.  Conveyance  of  Incorporeal  Interest 44 

6.  Other  Species  of  Conveyances 46 

CHAPTER  IV 
Joint    Owneeship 49 

CHAPTER  y 

DiSSEMSIN    AND    THE    REMEDIES    ThEREFOB 58 

CHAPTER  VI 
Uses  and  Tbusts 66 

BlO.lNT.  (v) 


TABLE  OF  STATUTES 


Page 

Magna  Carta  (1217),  sec.  39 12 

sec.    43 65 

13  Edw.  I,  c.  1,  De  Bonis  (1285) 22 

18  Edw.  I,  c.  1,  3,  Quia  Emptores  (1290) 12 

15  Rich.  II,  c.  5,  Mortmain  Statute  (1391) 66 

1  Rich.  Ill,  c.  1,  Statute  of  Uses  (1483) 71 

27  Hen.  VIII,  c.  10,  Statute  of  Uses  (1536) 72 

27  Hen.  VIII,  c.  16,  Statute  of  Enrollments  (1536) 76 

12  Car.  II,  c.  24,  Statute  Abolishing  the  Court  of  Wards  and  Liv- 
eries  (1660) 14 

29  Car.  II,  c.  3,  Statute  of  Frauds  (1676)  sees.  1,  2 35 

sec.    7 76 

4  Anne,  c.  16,  sec.  9,  Statute  of  Attornment'  (1705) 45 

8  &  9  Vict.  Statute  Regulating  Conveyances  (1845) 35 

BiG.lNT.  (Vi) 


TABLE    OF  CASES 


[titles  of  cases  cited  in  footnotes  are  indicated  by  italics,     where  small 
capitals  are  used,  the  case  is  referred  to  in  the  text] 


Page 

Abraham  v.  Tioigg 79 

BrougJiton  v.  Langley 79 

Callard  v.  Callard 77 

Callard  v.   Callard 78 

Cooper  v.  Franklin 82 

Doe  d.  Lloyd  v.  Passhighum 82 

Egcrton,  Case  of 79 

Lloyd  V.  Passingham 82 


Page 
LUTWITCn   V.    MiTTON.... 78 

Nevil  V.  Saunders : .     82 

Satnme,  Case  of 82 

SlIARINGTON    V.    StROTTON 77 

Shelley,  Case  of 21 

Shelley,   Case  of 21 

Shortridge  y.  Lampuigh 79 

Taltarum,   Case  of 24 

Tyirel,  Case  of 82 

Y.    B 21.  24 


Big.Int. 


(vii)j 


2  THE   FEUDAL   SYSTEM  (Ch.  ] 

ious  to  the  new  ruling  classes,  were  probably  for  the  most  part  not  at 
all  affected  so  far  as  their  physical  occupation  of  the  soil  was  con- 
cerned. At  the  same  time  it  is  true  that  as  a  result  of  the  Conquest, 
with  the  killing  off  of  a  considerable  part  of  the  higher  English  land- 
owning classes,  large  blocks  of  land  came  into  the  immediate  posses- 
sion of  the  king.  Furthermore,  he  succeeded  by  right  of  conquest  to 
all  the  lands  owned  by  the  Saxon  king,  and  other  large  amounts  came 
into  his  possession  by  forfeiture,  following  the  unsuccessful  rebellions 
of  the  English  nobility.  These  lands  aggregated  an  amount  which  it 
was  clearly  impossible  for  the  king  to  keep  in  his  immediate  personal 
possession.  It  was  also  desirable  that  such  an  organization  should  be 
put  on  foot  as  would  enable  him  to  retain  the  conquest  that  he  had 
made.  As  a  consequence  of  these  facts  the  king  parceled  out  large 
tracts  of  land  among  his  immediate  personal  followers.  These  men, 
in  turn,  parceled  out  the  large  tracts  so  allotted  to  them,  in  smaller 
tracts,  'among  their  immediate  personal  followers ;  and  this  process 
was  repeated  in  a  descending  scale.  Naturally  these  holdings  would 
be  allotted  upon  terms,  the  most  needful  provisions  in  which  would  be 
that  the  one  to  whom  the  allotment  was  made  would  assist  the  one 
from  whom  the  allotment  was  received  in  keeping  control  of  his  other 
j2roperty,  or  render  him  some  other  service  therefor.  The  allotter  in 
turn  would  promise  to  help  the  allottee  in  retaining  his  land  so  long  as 
he  kept  faith,  and  to  give  him  other  lands  if  he  were  ousted  from 
those  given.  These  reciprocal  relations  of  help  and  service  culmi- 
nated, as  has  been  already  said,  in  the  king.  The  allotments  thus  made 
in  the  manner  above  outlined  were  technically  known  as  fiefs^  or 
_feuds. 

Another  element  that  entered  into  the  formation  of  the  English 
feudal  system  was  the  fact  that  in  a  state  of  society  where  life  and 
property  were  none  too  secure  the  small  landholder  would  find  it 
almost  imperative  to  put  himself  under  the  protection  of  some  more 
powerful  individual.  Consequently,  where  there  was  no  forfeiture  of 
land,  it  is  probable  that  in  many  cases  the  small  landowner  would  "com- 
mend" himself  to  some  neighboring  lord.  This  involved  the  acknowl- 
edgment of  the  fact  that  the  person  so  commending  himself  became 
"the  man"  of  the  lord  and  that  he  held  his  lands  under  him. 

The  effect  of  these  two  forces-  was  that  by  the  time  of  Henry  II 
(1154-1189)  the  system  of  landholding  in  England  was  fairly  definitely 
established.  It  may,  roughly,  be  compared  to  a  pyramid :  At  the  sum- 
mit of  the  pyramid  was  the  king,  who  was,  in  legal  theory,  the  owner  of 
all  land  in  England.  Immediately  under  him  were  the  great  lords  of 
the  kingdom,  holding  the  large  tracts  of  land  in  the  manner  already 
mentioned.  These  tenants  immediately  under  the  king  later  received 
the  name  of  "tenants  in  capite."  Under  the  tenants  in  capite  were 
various  grades  of  intermediate  or  mesne  tenants,  and  at  the  bottom  of 
the  pyramid  may  be  said  to  be  the  tenants  who  were  in  actual  occu- 


Sec.  1)  INTRODUCTION  3 

pation  of  the  land,  either  personally  or  by  their  servants.  Just  what 
the  relation  was  between  these  tenants  in  occupation  and  the  actual  till- 
ers of  the  soil  will  be  considered  more  in  detail  subsequently.  Thus  it 
may  be  said  that,  except  for  the  highest  and  lowest  grades,  each  per- 
son occupied  a  double  relation.  With  respect  to  the  person  below  him 
he  \\as  a  lord;  \vit;h_resjpect  to  the  person  under  whom  he  was  holding 
he  was  a  tenant,  owing  fealty  and  faith  and  feudal  services,  and  enti- 
tled to  receive  protection  from  his  lord. 

The  creation  of  this  relation  of  lord  and  tenant  was  accompanied 
by  certain  formalities  which  seem  to  have  been  regarded  as  of  great 
significance,  viz.,  the  doing  of  homage  and  the  swearing  of  fealty. 
In  the  former  ceremony  the  tenant  knelt  unarmed,  ungirt,  and  bare- 
headed before  his  lord,  put  his  hands  in  the  hands  of  his  lord,  and  ac- 
knowledged that  he  became  the  lord's  man,  and  that  he  held  his  land 
of  him  and  would  faithfully  perform  his  obligations  as  such  tenant. 
Swearing  fealty  was  a  less  ceremonious  performance.  The  tenant  stood 
before  his  lord  and  solemnly  swore  that  he  would  bear  faith  and  per- 
form his  obligations  as  a  loyal  tenant.  Turning  from  the  formalities 
of  the  creation  of  lord  and  tenant  to  the  nature  of  the  rights  created 
diereby  in  the  land  which  the  tenant  received  from  his  lord,  it  is  to  be 
noticed,  and  this  is  one  of  the  striking  peculiarities  of  the  feudal  sys- 
tem_  of  landholdingj  that  each  tenant  and  lord,  although  there  might 
be  with  respect  to  any  given  piece  of  land  four  or  five  individuals  in  an 
ascending  scale  from  the  tenant  to  the  king,  was  regarded  as  having  a 
propertA-  interest  in  the  land.  The  one  in  possession  was  said  to  be 
^ised  in  his  demesne.  The  others  under  whom  he  held  were  said  to 
be  ^sed.  in  service.  This  relation  between  the  lord  and  the  tenant 
with  respect  to  the  land  was  technically  known  as  tenure.  There  were 
various  species  of  tenure,  and  these  it  is  now  necessary  to  examine. 
The  first  distinction  that  is  to  be  noticed  in  this  regard  is  the  distinc- 
tion^ between  free  tenure  and  villain  or  servile  tenure.  The  free  *ten  • 
ures  were  of  three  sorts:  Military;  socage;  frankalmoyn.^ 

1  On  the  iutroduction  of  the  feudal  system  into  England,  see  2  Blackstoue, 
Commentaries,  ch.  IV;  1  Pollock  &  Maitland,  History  of  the  English  Law 
(2d  Ed.)  pp.  66-73;  2  Id.  pp.  232-240;  Digby,  Hist,  of  the  Law.  of  Real  Prop. 
(5th  Ed.)  pp.  29-38. 


THE   FEUDAL  SYSTEM  '  (Ch.  1 


SECTION  2.— MILITARY  TENURE 


Military  tenure  was  considered  to  be  at  once  the  most  onerous 
and  the  most  honorable  form  of  tenure.  The  most  common  form  of 
military  tenure  was  tenure,  by  knight  service.  It  could  exist  only  if 
the  tenant  held  at  least  a  minimum  amount  of  land,  called  a  knight's 
fee,  and  the  holding  involved  the  obligation  upon  the  part  of  the 
tenant  to  serve  the  king  in  battle  for  a  certain  number  of  days  per 
year,  dependent  upon  the  extent  of  his  holding.  The  fundamental 
characteristic  of  knight  service,  and  indeed  of  all  military  tenures, 
was  the  uncertainty  of  the  obligation.  In  practice,  this  obligation  of 
personal  service  by  the  tenant  in  knight  service  was,  after  a  com- 
paratively short  time,  found  to  be  unsatisfactory  from  a  military  point 
of  view,  and  in  the  time  of  Henry  II  the  obligation  was  commuted 
into  a  money  payment,  called  scutage,  proportioned  to  the  amount  of 
land  held.  The  tenure  is  sometimes  referred'  to  as  scutage  tenure  for 
this  reason. 

In  addition  to  this  fundamental  obligation  of  military  service,  there 
were  a  number  of  other  obligations,  or  incidents,  as  they  were  tech- 
nically called,  which  belonged  to  military  tenure.  These  various  in- 
cidents are  well  described  by  Blackstone:* 

"This  tenure  of  knight  service  *  ♦  ♦  was  perfected  by  homage 
and  fealty.  It  also  drew  after  it  these  seven  fruits  and  consequences, 
as  inseparably  incident  to  the  tenure  in  chivalry,  viz.  aids,  relief, 
primer  seisin,  wardship,  marriage,  fines  for  alienation,  and  escheat: 
All  which  I  shall  endeavour  to  explain,  and  to  shew  to  be  of  feodal 
original. 

"1.  Aids  were  originally  mere  benevolences  granted  by  the  tenant 
to  his  lord,  in  times  of  difficulty  and  distress ;  but  in  process  of  time 
they  grew  to  be  considered  as  a  matter  of  right,  and  not  of  discretion. 
These  aids  were  principally  three:  f'^i'rst,  to  ransom  the  lord's  per- 
son, if  taken  prisoner;  a  necessar}^  consequence  of  the  feodal  attach- 
ment and  fidelity :  insomuch  that  the  neglect  of  doing  it,  whenever  it 
was  in  the  vassal's  power,  was  by  the  strict  rigour  of  the  feodal  law 
an  absolute  forfeiture  of  his  estate.  Secondly,  to  make  the  lord's 
ejdest  son  a  knight ;  a  matter  that  was  formerly  attended  with  great 
ceremony,  pomp,  and  expense.  This  aid  could  not  be  demanded  un- 
til the  heir  was  fifteen  years  old,  or  capable  of  bearing  arms :  the  in- 
tention of  it  being  to  breed  up  the  eldest  son  and  heir  apparent  of 
the  seignory,  to  deeds  of  arms  and  chivalry,  for  the  better  defence 
of  the  nation.  Thirdly,  to  marry  the  lord's  eldest  daughter,  by  giv- 
ing her  a  suitable  portion.    *    ♦    ♦ 

a  II  Bl.  op.  cit.  ch.  V. 


Sec.  2)  MILITARY   TKNDRE  5 

"2.  Relief,  relevium,  was  before  mentioned  as  incident  to  every 
feodal  tenure,  by  way  of  fin«  or  composition  with  the  lord  for  taking 
up  the  estate  which  was  lapsed  or  fallen  in  by  the  death  of  the  last 
tenant.  _  But  though  reliefs  had  their  original  while  feuds  were  only 
life  estates,  yet  they  continued  after  feuds  became  hereditary;  and 
were  therefore  looked  upon,  very  justly,  as  one  of  the  greatest  griev- 
ances of  tenure:  especially  when,  at  the  first,  they  were  merely  ar- 
bitrary and  at  the  will  of  the  lord;  so  that,  if  he  pleased  to  demand 
an  exorbitant  relief  it_was  in  effect  to  disinherit  the  heir.  *  *  * 
But  afterwards  *  *  *  ^-j-^g  composition  was  universally  accepted 
of  100s.  for  every  knight's  fee;  as  we  find  it  ever  after  established. 
But  it  must  be  remembered,  that  this  relief  was  only  then  payable, 
jf^the  heir  at  the  death  of  his  ancestor  had  attained  his  full  age  of 
one-and-twenty  years. 

"3.  Primer  seisin  was  a  feodal  burthen,  only  incident  to  the  king's 
tenants  in  capite,  and  not  to  those  who  held  of  inferior  or  mesne  lords. 
It  was  a  right  which  the  king  had,  when  any  of  his  tenants  in  capite 
died  seised  of  a  knight's  fee,  to  receive  of  the  heir  (provided  he  were 
of  full  age)  one  whole  year's  profits  of  the  lands,  if  they  were  in 
immediate  possession :  and  half  a  year's  profits,  if  the  lands  were  in 
reversion  expectant  on  an  estate  for  life.  This  seems  to  be  little 
more  than  an^  additional  relief,  but  grounded  upon  this  feodal  rea- 
son :  That  by  the  ancient  law  of  feuds,  immediately  upon  the  death 
of  a  vassal,  the  superior  was  entitled  to  enter  and  take  seisin  or  pos- 
session of  the  land,  by  way  of  protection  against  intruders,  till  the 
heir  appeared  to  claim  it,  and  receive  investiture:  during  which  in- 
terval the  lord  was  entitled  to  take  the  profits;  and  unless  the  heir 
claimed  within  a  year  and  a  day,  it  was  by  the  strict  law  a  forfeiture. 
This  practice  however  seems  not  to  have  long  obtained  in  England, 
if  ever,  with  regard  to  tenure  under  inferior  lords ;  but  as  to  the 
king's  tenures  in  capite,  the  prima  seisina  was  expressly  declared,  un- 
der Henry  III  and  Edward  II,  to  belong  to  the  king  by  prerogative, 
in  contradistinction  to  other  lords.  The  king  was  entitled  to  enter  and 
receive  the  whole  profits  of  the  land,  till  livery  was  sued;  which  suit 
being  commonly  made  within  a  year  and  day  next  after  the  death  of 
the  tenant,  in  pursuance  of  the  strict  feodal  rule,  therefore  the  king 
used  to  take  as  an  average  the  first  fruits,  that  is  to  say,  one  year's 
profits  of  the  land.    ♦    *    * 

"4.  These  payments  were  only  due  if  the  heir  was  of  full  age;  but 
if  he  was  under  the  age  of  twenty-one,  being  a  male,  or  fourteen,  be- 
ing a  female,  the  lord  was  entitled  to  the  wardship  of  the  heir,  and 
was  called  the  guardian  in  chivalry.  This  wardship  consisted  in  hav- 
ing the  custody  of  the  body  and  lands  of  such  heir,  without  any  ac- 
count of  the  profits,  till  the  age  of  twenty-one  in  males,  and  sixteen 
in  females.  For  the  law  supposed  the  heir  male  unable  to  perform 
knight  service  till  twenty-one;  but  as  for  the  female,  she  was  sup- 
posed capable  at  fourteen  to  marry,  and  then  her  husband  might  per- 


6  THE   FEUDAL   SYSTEM  (Ch.  1 

form  the  service.  The  lord  therefore  had  no.  wardship,  if  at  the 
death  of  the  ancestor  the  heir  male  wa^  of  the  full  age  of  twenty- 
one,  or  the  heir  female  of  fourteen ;  yet,  if  she  was  then  under  four- 
teen, and  the  lord  once  had  her  in  ward,  he  might  keep  her  so  till  six- 
teen, by  virtue  of  the  statute  of  Westm.  I,  Edw.  I,  c.  22,  the  two  ad- 
ditional being  given  by  the  legislature  for  no  other  reason  but  merely 
to  benefit  the  lord. 

"This  wardship,  so  far  as  it  related  to  land,  though  it  was  not  nor 
could  be  part  of  the  law  of  feuds,  so  long  as  they  were  arbitrary, 
temporary,  or  for  life  only;  yet  when  they  became  hereditary,  and 
did  consequently  often  descend  upon  infants,  who  by  reason  of  their 
age  could  neither  perform  nor  stipulate  for  the  services  of  the  feud, 
does  not  seem  upon  feodal  principles  to  have  been  unreasonable.  For 
the  wardship  of  the  land,  or  custody  of  the  feud,  was  retained  by  the 
lord,  that  he  might  out  of  the  profits  thereof  provide  a  fit  person  to 
supply  the  infant's  services,  till  he  should  be  of  age  to  perform  them 
himself.  And  if  we  consider  the  feud  in  its  original  import,  as  a 
stipend,  fee,  or  reward  for  actual  service,  it  could  not  be  thought 
hard  that  the  lord  should  withhold  the  stipend,  so  long  as  the  service 
was  suspended.    *    *    * 

"When  the  male  heir  arrived  to  the  age  of  twenty-one,  or  the  heir 
female  to  that  of  sixteen,  they  might  sue  out  their  livery  or  ousterle- 
main ;  that  is  the  delivery  of  their  lands  out  of  their  guardian's  hands. 
For  this  they  were  obliged  to  pay  a  fine,  namely,  one  half  a  year's 
profit  of  the  land ;  though  this  seems  expressly  contrary  to  Magna 
Carta.  However,  in  consideration  of  their  lands  having  been  so  long 
in  ward,  they  were  excused  all  reliefs,  and  the  king's  tenants  also  aU 
primer  seisins.     *    *    * 

"5.  But,  before  they  came  of  age,  there  was  still  another  piece  of 
authority,  which  the  guardian  was  at  liberty  to  exercise  over  his  in- 
fant wards;  I  mean  the  right  of  marriage  (maritagium,  as  contra- 
distinguished from  matrimony),  which  in  its  feodal  sense  signifies  the 
power,  which  the  lord  or  guardian  in  chivalry  had  of  disposing  of  his 
infant  ward  in  matrimony.  For,  while  the  infant  was  in  ward,  the 
"guardian  had  the  power  of  tendering  him  or  her  a  suitable  match, 
without  disparagement  or  inequality ;  which  if  the  infants  refused, 
they  forfeited  the  value  of  the  marriage,  valorem  maritagii,  to  their 
guardian;  that  is,  so  much  as  a  jury  would  assess,  or  any  one  would 
bona  fide  give  to  the  guardian  for  such  an  alliance;  and,  if  the  in- 
fants married  themselves  without  the  guardian's  consent,  they  for- 
feited double  the  value,  duplicem  valorem  maritagii.  This  seems  to 
have  been  one  of  the  greatest  hardships  of  our  ancient  tenures.  There 
were  indeed  substantial  reasons  why  the  lord  should  have  the  re- 
straint and  control  of  the  ward's  marriage,  especially  of  his  female 
ward ;  because  of  their  tender  years,  and  the  danger  of  such  female 
ward's  intermarrying  with  the  lord's  enemy;    but  no  tolerable  pre- 


Sec.  2)  MILITARY   TENURE  7 

tence  could  be  assigned  why  tlie  lord  should  have  the  sale  or  value  of 
the  marriage.     *     *     * 

"6.  Another  attendant  or  consequence  of  tenure  by  knight  service 
was  that  of  fines  due  to  the  lord  for  every  alienation,  whenever  the 
tenant  had  occasion  to  make  over  his  land  to  another.  This  de- 
pended on  the  nature  of  the  f  eodal  connexion ;  it  not  being  rea- 
sonable or  allowed,  as  we  have  before  seen,  that  a  feudatory  should 
transfer  his  lord's  gift  to  another,  and  substitute  a  new  tenant  to  do 
the  service  in  his  own  stead,  without  the  consent  of  the  lord :  and, 
as  the  feodal  obligation  was  considered  as  reciprocal,  the  lord  also 
could  not  alienate  his  seignory  without  the  consent  of  his  tenant, 
which  consent  of  his  was  called  an  attornment.     This  restraint  upon 

the  lords  soon  wore  away;    that  upon  the  tenants  continued  longer. 
*    *    * 

"7.  The  last  consequence  of  tenure  in  chivalry  was  escheat ;  which 
is  the  determination  of  the  tenure,  or  dissolution  of  the  mutual  bond 
between  the  lord  and  tenant  from  the  extinction  of  the  blood  of  the 
latter  by  either  natural  or  civil  means:  if  he  died  without  heirs  of  his 
blood,  or  if  his  blood  was  corrupted  and  stained  by  commission  of 
treason  or  felony ;  whereby  every  inheritable  quality  was  entirely 
blotted  out  and  abolished.  In  such  cases  the  lands  escheated,  or  fell 
back  to  the  lord  of  the  fee;  that  is,  the  tenure  was  determined  by 
breach  of  the  original  condition  expressed  or  implied  in  the  feodal 
donation.  In  the  one  case  there  were  no  heirs  subsisting  of  the  blood 
of  the  first  feudatory  or  purchaser,  to  which  heirs  alone  the  grant  of 
the  feud  extended ;  in  the  other,  the  tenant,  by  perpetrating  an 
atrocious  crime,  shewed  that  he  was  no  longer  to  be  trusted  as  a 
vassal,  having  forgotten  his  duty  as  a  subject;  and  therefore  for- 
feited his  feud,  which  he  held  under  the  implied  condition  that  he 
should  not  be  a  traitor  or  a  felon.  The  consequence  of  which  in  both 
cases  was,  that  the  gift,  being  determined,  resulted  back  to  the  lord 
who  gave  it." 

Another  species  of  military  tenure  was  tenure  by  grand  serjeanty. 
The  tenant  so  holding  was  bound  to  attend  personally  upon  the  king 
for  some  service,  such  as  carrying  his  banner  or  bearing  his  sword.^ 

3  On  railitarv  tenures  ?ee  2  Poll.  &  Mait.  op.  cit.  pp.  252-290.  307-329 ; 
Williams,  Real  Prop.  (20th  Ed.)  pp.  45-50 ;  Coke's  Littleton,  74b-85a. 


THE   FEUDAL   SYSTEM  (Ch.  1 


SECTION  3.— SOCAGE /TENURE 

1 ^ 

Just  as  the  tenure  already  discussed  was  a  military  tenure,  based 
on  the  rendering  of  military  services  and  existent  chiefly  among  the 
nobility,  or  what  would  in  later  years  have  been  called  the  landed 
gentry,  so  it  may  be  said,  broadly  speaking,  that  socage  tenure  was  an 
agricultural  tenure,  and  was,  for  the  most  part  confined  to  the  lower 
grades  of  society.  The  term  "socage  tenure"  has  been  variously  de- 
rived from  the  old  French  "soc,"  meaning  a  plow,  or  from  the  Anglo- 
Saxon  "socn,"  meaning  jurisdiction. 

For  a  better  understanding  of  the  scope  and  nature  of  the  socage 
tenure  it  will  be  necessary  to  consider  briefly  the  place  occupied  in 
the  feudal  law  by  the  institution  of  the  manor.  The  manorial  organi- 
zation in  substance,  if  not  under  that  name,  was  undoubtedly  very 
much  older  than  the  Norman  Conquest.  In  a  simple  and  largely  agri- 
cultural organization  of  society,  where  means  of  communication  were 
few  and  imperfect,  and  where  a  large  part  of  the  population  lived  and 
died  in  the  same  place  in  which  it  was  born,  the  natural  unit,  outside 
of  the  family,  would  tend  to  be  the  village  or  township  center,  ordi- 
narily controlled  and  protected  by  some  lord.  It  was  these  units  to 
which  the  name  "manor"  was  subsequently  given,  and  the  legal  as- 
pects of  which  were  worked  out  by  the  Anglo-Norman  lawyers. 

A  complete  manor  in  the  technical  sense  of  the  word  may  be  said 
to  have  two  aspects :  A  territorial,  and  a  jurisdictional.  On  the  ter- 
ritorial side  it  may  be  said  that  the  lands  embraced  in  a  given  manor 
were  of  various  sorts.  There  was,  first,  the  demesne,  upon  which 
dwelt  the  lord  of  the  manor  or  his  bailiff.  The  demesne  land  also 
embraced  a  certain  portion  of  arable  land  upon  which  were  raised 
the  crops  for  the  lord's  own  use  and  profit.  Next,  there  were  large 
tracts  of  land  upon  which  dwelt  the  tenants  of  the  manor.  These 
^t^nants  were  freemen.  They  held  their  tracts  under  the  lord  of  the 
manor  and  owed  him  services  and  fealty  therefor;  but  only  in  the 
same  sense  that  their  lord  in  turn  held  from  his  overlord  in  the 
way  that  has  already  been  described.  In  some  cases  these  tenants 
held  by  military  tenure.  In  others  the  services  or  returns  that  the 
freeholders  had  to  render  to  their  lord  for  the  lands  so  held  under 
him  consisted  of  agricultural  services  of  a  fixed  character,  on  the 
demesne  land;  in  other  cases  of  a  payment  in  kind;  and  in  others, 
of  a  money  payment,  the  former  not  infrequently  being  commuted 
into  the  latter.  These  are  the  origins  and  fundamental  characteristics 
of  tenancy  in  socage,  and  the  distinguishing  feature  of  this  tenancy, 
as  contrasted  with  military  tenancy,._is  the  certainty  of  the  services 
which  had  to  be  rendered  as  a  return  for  the  land  held. 

A  third  portion  of  the  manor  consisted  of  the  so-called  common 


Sec.  3)  SOCAGE   TENURE  9 

land.  In  these  the  tenants  of  the  manor  had  certain  rights  of  pastur- 
ing their  cattle,  of  cutting  firewood,  and  the  like.  It  is  in  this  aspect 
of  manorial  life  that  we  find  the  beginnings  of  the  modem  law  of 
easements  and  profits. 

In  addition  to  the  freehold  tenants  above  described,  there  were 
also,  upon  many  manors,  a  class  of  unfree,  or  servile,  tenants.  The 
characteristics  of  their  holding  will  be  referred  to  subsequently  in 
another  connection.  ' 

Turning  to  the  jurisdictional  aspect  of  the  manorial  organization, 
it  should  be  noticed  that  there  were  two  manorial  courts.  There 
was,  first,  the^  court  baron.  This  was  presided  over  by  the  lord  of  the 
manor  and  attended  by  the  freeholders  of  the  manor,  whose  duty  it 
was  to  act  as  jurors  and  judges  in  the  cases  brought  before  them. 
The  activities  of  the  court  were  concerned  mainly  with  the  settle- 
rnent_of  disputes  relating  to  the  land  of  the  freeholders  comprised  in 
th&.  manor.  In  the  manors  on  which  were  found  the  servile  ten- 
ants, to  which  reference  has  already  been  made,  there  existed  a  second 
and  lower  branch  of  the  court  baron.  This  is  ordinarily  called  the 
customary  court  baron,  to  distinguish  it  from  the  freeholders'  court. 
The  functions  of  the  customary  court  were  t£  settle  the  land  rights 
of  the  servile  tenants  and  other  similar  questions.  In  addition  to  what 
may  be  called  these  civil  manorial  courts,  there  was  also  the  court  leet, 
which  had  a  jurisdiction  over  crimes  committed  within  the  manor.'* 

After  this  digression  into  the  subject  of  the  manor  we  may  return 
to  a  consideration  of  socage  tenure.  As  regards  the  feudal  incidents 
attendant  upon  socage  tenure,  only  this  need  be  said.  The  tenant 
owed  fealty  to  the  lord;  homage  was  rarely  an  incident  of  socage 
t^iure.  Aids  and  relief  were  incidents,  but  their  amount  was  fixed 
at  one  year's  rent  of  the  land.  Tenants  in  capite  in  socage  were  also 
subject  to  primer  seisin;  and  the  incident  of  escheat  also  obtained  in 
this  tenure.  The  most  important  difference  in  this  regard  between 
military  and  socage  tenure,  and  the  one  that  made  socage  tenure  dis- 
tinctly more  advantageous  to  the  tenant,  was  that  the  incident  of 
niarriage  did  not  exist  at  all.  The  incident  of  wardship  existed,  but 
the  guardian  was  accountable  to  the  ward  for  all  the  profits  derived 
from  the  land. 

While  socage  tenure  was  largely  an  agricultural  tenure,  there  were 
nevertheless  other  socage  tenures,  so  classified  because  of  the  certain- 
ty of  the  services  to  be  rendered.     These  should  be  briefly  noticed : 

In  many  of  the  towns  in  England  the  tenants  held  from  their  lord 
by  a  species  of  socage  tenure  called  "burgage  tenure,"  or  "borough 
English."  The  characteristic  feature  of  borough  English  was  that 
the  lands  descended  to  the  youngest  son,  instead  of  either  to  the  oldest 
or  to  all  the  sons  equally.  Another  species  of  socage  tenure  was  the 
so-called  "gavelkind  tenure."     The  characteristics  of  this  tenure  are 

'  ■*  On  the  manor  see  Dlgby,  op.  cit.  pp.  43-45,  49-56 ;  1  Poll.  &  Mait.  op.  cit. 
pp.  594-634. 


10  THE   FEUDAL   SYSTEM  (Ch.  1 

four:  The  lands  (1)  descended  to  all  the  sons  equally;  (2)  were 
devisable  by  will ;  (3)  did  not  escheat  in  case  of  attainder  for  felony ; 
(4)  could  be  aliened  by  the  tenant  when  he  reached  fifteen. 

Another  form  of  socage  tenure  was  "petty  serjeanty."  The  holder 
under  this  form  of  tenure  had  the  obligation  to  render  annually  to  the 
king  some  article,  such  as  a  horse  or  a  spear,  in  return  for  the  land 
held  by  him.* 


SECTION  4.— FRANKALMOYN  TENURE 


6^//---     -  ^ 


This  tenure  was  a  religious  tenure.  It  antedates  the  Conquest,  and 
was  the  tenure  upon  which  many  of  the  monasteries  and  religious 
houses  in  England  held  their  lands.  There  were  no  feudal  incidents 
attached  thereto.  As  a  result  of  the  statute  of  Quia  Emptores,  re- 
ferred to  later,  no  tenancy  in  frankalmoyn  could  be  created  after  the 
date  of  that  statute,  except  by  the  king.* 


SECTION  5.— COPYHOLD  TENURE 


In  the  discussion  of  the  manor  it  was  mentioned  that,  in  addi- 
tion to  the  free  tenants  upon  the  manors,  there  was  another  class  of 
tenants.  This  other  class  of  tenants  held  by  a  servile  tenure.  The 
essence  of  the  tenure  seems  to  have  been  that  the  extent  of  their 
obligation  was  originally  undefined  and  largely  dependent  upon  the 
will  of  the  lord.  Another  characteristic  was  that  originally  their 
lands  were  held  at  the  will  of  the  lord  and  they  could  be  at  any  time 
turned  out  of  them.  In  the  course  of  time,  however,  the  extent 
of  their  obligation  became  more  or  less  exactly  defined  by  custom,  and 
their  rights  to  retain  possession  of  the  land  so  long  as  they  fulfilled 
their  obligations  also  became  recognized.  The  only  evidence,  how- 
ever, of  the  nature  of  their  obligations  or  the  extent  of  their  interest 
in  their  land,  was  in  the  copy  of  the  rolls  of  the  manor.  Hence  the 
origin  of  the  term  "copyhold,"  which  is  applied  to  this  species  of  ten- 
ure. The  only  method  whereby  the  copyhold  tenant  could  transfer 
his  land  was  to  surrender  his  land  to  his  lord,  with  the  request  that 
his  purchaser  be  inducted  into  the  land.     A  certain  amount  of  land  is 

5  On  socage  tenure  see  2  Bl.  op.  cit.  pp.  79-92 ;  Digby,  op.  cit.  pp.  47-49 ; 
2  Poll.  &  Mait.  291-307;  Williams,  op.  cit.  pp.  49-53;  Coke,  Littleton,  S5b-93b. 

8  On  frankalmoyn  see  Co.  Lit.,  93b-100b ;  2  Poll.  &  Mait.  op.  cit.  pp.  240- 
251;  2  Bl.  op.  cit.  pp.  101,  102. 


Sec.  6)  STATUTORY    CHANGES   IN   THE   FEUDAL   SYSTEM  11 

Still  held  in  England  by  copyhold  tenure,  although  at  the  present  time 
all  servile  incidents  or  uncertainties  of  obligation  in  respect  tliereto 
have  long  since  passed  awa}'.^ 


SECTION  6.— STATUTORY  CHANGES  IN  THE  FEUDAL 

SYSTEM 


The  earlier  history  of  the  growth  of  the  law  with  respect  to  the  pow- 
er of  the  tenant  to  alien  his  lands  is  a  matter  with  respect  to  which  con- 
siderable doubt  exists.  It  is  by  no  means  certain  whether  for  the 
first  two  hundred  years  after  the  Norman  Conquest  the  growth  was 
toward  a  restriction  of  the  power  of  alienation,  or  toward  a  devel- 
opment of  freedom  in  the  power  of  alienation.  It  seems  reasonably 
certain  that  by  the  time  of  Henry  II  the  power  of  the  tenant  to  alien 
his  lands,  subject  to  the  payment  of  the  ordinary  fines,  was  definitely 
^established. 

Land  may  be  alienated  in  one  of  two  ways :  For  example,  if  A.  is 
the  lord  and  B.  is  the  tenant,  B.  may  alienate  his  complete  interest 
to  C.  This  may  be  called  alienation  by  substitution.  Since  the  serv- 
ices were  regarded  as  being  due  from  the  land,  an  alienation  of  this 
sort  would  not  deprive  A.,  as  overlord,  of  any  of  his  feudal  dues. 
At  the  same  time,  however,  he  might  be  prejudiced  in  the  personality 
of  the  tenant  by  the  change  from  one  favorably  disposed  to  him  to 
one  not  so  favorably  disposed.  More  than  this,  if  B.  alienated  his 
land  to  several  different  persons,  instead  of  to  one  person,  there  would 
be  more  difficulty  on  the  part  of  A.  in  collecting  his  feudal  dues. 

In  comparison  with  the  case  just  above  put,  B.,  the  feudal  tenant 
of  A.,  instead  of  conveying  to  C.  all  his  possible  interests  in  the  land, 
and  thereby  substituting  C.  in  his  place,  might  convey  the  land  to  C. 
in  perpetuity,  but  at  the  same  time  reserve  from  C.  certain  obligations 
to  himself;  B.  thereby  interposing  himself  as  a  mesne  lord  between 
A.  and  C,  so  that  C.  would  hold  his  lands  and  be  in  a  tenure  relation, 
not  to  A.,  but  to  B.  This  is  known  as  ahenation  by  subinfeudation.  It 
would  not  affect  the  personal  relations  between  A.  and  B.,  nor  would 
it  cut  oft'  the  feudal  obligations  owed  to  A.  by  the  land.  But  it  never- 
theless might  seriously  prejudice  A.  in  the  most  valuable  of  his  feudal 
rights.  Suppose,  for  example,  that  B.  should  convey  the  land  to  C, 
subject  only  to  the  obligation  to  pay  one  penny  yearly.  If,  now,  B. 
should  die,  leaving  only  a  minor  heir,  A.  would  have  his  right  of 
wardship.  But,  instead  of  being  entitled  under  it  to  take  possession 
of  the  land  and  get  what  he  could  from  it,  all  he  would  be  entitled 

1  On  copvhold  see  1  Poll.  &  Mait.  op.  cit.  pp.  35G-oS3 ;  Digby,  op.  cit.  pp. 
152,  153,  2S8-295 ;  2  Bl.  op.  cit.  pp.  90-101. 


12  THE   FEUDAL  SYSTEM  (Ch.  1 

to  would  be  the  one  penny  per  annum.  So,  again,  if  B.  died  without 
heirs,  so  that  his  interest  would  escheat  to  A.,  the  only  subject-matter 
of  the  escheat  would  be  the  reservation  of  one  penny  per  annum. 

The  first  legislation  that  seems  to  have  been  passed  directed  against 
this  state  of  affairs  is  found  in  Magna  Carta  (1217),  which  provides 
(section  xxxix) :  "No  freeman  from  henceforth  shall  give  or  sell 
any  more  of  his  land,  but  so  that  of  the  residue  of  the  lands  the  lord 
of  the  fee  may  have  the  services  due  to  him  which  belong  to  the  fee." 

Apparently  this  provision  was  not  regarded  as  an  adequate  settle- 
ment of  the  matter.  The  subject  was  definitely  settled  by  legislation 
in  the  reign  of  Edward  I.  -In  the  year  1290  was  passed  the  statute 
of  Quia  Emptores.  It  read  as  follows: 
/  "Forasmuch  as  purchasers  of  lands  and  tenements  of  the  fees  of 
great  men  and  other  lords  have  many  times  heretofore  entered  into 
their  fees,  to  the  prejudice  of  the  lords,  to  whom  the  freeholders  of 
such  great  men  have  sold  their  lands  and  tenements  to  be  holden  in 
fee  of  their  feoffors  and  not  of  the  chief  lords  of  the  fees,  whereby 
the  same  chief  lords  have  many  times  lost  their  escheates,  marriages, 
and  wardships  of  lands  and  tenements  belonging  to  their  fees,  which 
thing  seems  very  hard  and  extreme  unto  those  lords  and  other  great 
men,  and  moreover  in  this  case  manifest  disheritance,  our  lord  the 
king  in  his  parliament  at  Westminster  after  Easter  the  eighteenth  year 
of  his  reign,  that  is  to  wit  in  the  quinzine  of  Saint  John  Baptist,  at 
the  instance  of  the  great  men  of  the  realm  granted,  provided,  and  or- 
dained, that  from  henceforth  it  should  be  lawful  to  every  freeman 
to  sell  at  his  own  pleasure'  his  lands  and  tenements  or  part  of  them, 
so  that  the  feoffee  shall  hold  the  same  lands  or  tenements  of  the 
chief  lord  of  the  same  fee,  by  such  service  and  customs  as  his  feoffor 
held  before.  ] 

"c.  2.  And  if  he  sell  any  part  of  such  lands  or  tenements  to  any, 
the  feoft'ee  shall  immediately  hold  it  of  the  chief  lord,  and  shall  be 
forthwith  charged  with  the  services  for  so  much  as  pertaineth  or  ought 
to  pertain  to  the  said  chief  lord,  for  the  same  parcel,  according  to 
the  quantity  of  the  land  or  tenement  so  sold ;  and  so  in  this  case  the 
same  part  of  the  service  shall  remain  to  the  lord,  to  be  taken  by  the 
hands  of  the  feoffee,  for  the  which  he  ought  to  be  attendant  and 
answerable  to  the  same  chief  lord  according  to  the  quantity  of  the 
land  or  tenement  sold  for  the  parcel  of  the  service  so  due. 

"c.  3.  And  it  is  to  be  understood  that'by  the  said  sales  or  pur- 
chases of  lands  or  tenements,  or  any  parcel  of  them,  such  lands  or 
tenements  shall  in  no  wise  come  into  mortmain,  either  in  part  or  in 
whole,  neither  by  policy  ne  craft,  contrary  to  the  form  of  the  stat- 
ute made  thereupon  of  late.  And  it  is  to  wit  that  this  statute  ex- 
tendeth  but  only  to  lands  holden  in  fee  simple,  and  that  it  extendeth 
to  the  time  coming.  And  it  shall  begin  to  take  effect  at  the  Feast  of 
Saint  Andrew  the  Apostle  next  coming." 


Sec.  6) 


STATUTORY   CHANGES  IN   THE   FEUDAL  SYSTEM 


13 


The  effects  of  this  statute  may  be  briefly  summarized  as  follows : 

1.  It  allowed  complete  alienation  bj^  way  of  substitution  upon  the 
payment  of  a  fine,  even  though  the  lands  were  thereby  divided. 

2.  It  abolished  subinfeudation,  making  the  feoffee  hold  of  the  feof- 
for's overlord  upon  the  same  terms  upon  which  the  feoffor  had  held 
of  the  feoffor's  overlord. 

3.  It.  did  not  .affect  the  rights  of  the  king  against  the  tenants  in 
capite,  because  of  the  general  principle  that  the  rights  of  the  king 
are  not  affected  by  a  statute  unless  he  is  specially  named  therein. 

4.  It  applied  only  to  conveyances  in  fee  simple. 

So  long  as  English  society  continued  on  what  might  fairly  be  called 
a  military  basis,  so  long  as  protection  to  property  and  life  through 
legal  process  was  not  very  direct  and  adequate,  and  the  need  for  pro- 
tection and  assistance  between  the  lord  and  the  tenant  was  immediate 
and  close,  the  feudal  organization  of  society,  with  its  onerous  inci- 
dents, might  nevertheless  be  regarded  as  a  not  unfair  working  ar- 
rangement. In  the  course  of  time,  however,  the  feudal  element  in 
English  economic  life  ceased  to  have  any  real  value,  the  agricultural 
element  became  more  pronounced,  and  then  gradually  a  commercial 
aspect  developed.  The  king's  courts  asserted  their  jurisdiction  over 
all  the  country,  and  life  and  property  became  secure.  With  this 
growth  of  society  the  justification  for  the  feudal  incidents  disappear- 
ed. They  became  a  mer^  source  of  profit  upon  the  part  of  the  lord, 
with  no  corresponding  benefit  to  the  tenant.  An  element  that  operat- 
ed to  make  this  burden  all  the  more  heavy  was  the  fact  that,  with 
the  breaking  down  of  the  feudal  system,  the  relation  of  lord  and 
tenant  was  no  longer  kept  sharply  in  mind,  and  the  doctrine  grad- 
ually arose  that  every  tenant  was  presumed  to  be  a  tenant  in  capite, 
unless  it  appeared  that  he  was  a  mesne  tenant.  It  has  already  been 
pointed  out  that  the  feudal  burdens  of  the  tenants  in  capite  were 
distinctly  more  onerous  than  those  of  the  mesne  tenants.  The  effect 
of  Quia  Emptores  was  also  to  work  the  holding  of  any  given  tenant 
toward  the  top  of  the  feudal  pyramid.  When  feudalism  was  definite- 
ly terminated  as  a  real  factor  in  English  economic  organization  by 
the  War  of  the  Roses,  and  the  establishment  of  the  Tudors,  the  ob- 
jection to  these  burdensome  incidents  became  constantly  stronger. 
_Blackstone  thus  describes  the  situation.* 

"For  the  present  I  have  only  to  observe,  that  by  the  degenerating 
of  knight  service,  or  personal  military  duty,  in  escuage,  or  pecuniary 
assessments,  all  the  advantages  (either  promised  or  real)  of  the  feudal 
constitution  were  destroyed,  and  nothing  but  the  hardships  remained. 
Instead  of  forming  a  national  militia  composed  of  barons,  knights,  and 
gentlemen,  bound  by  their  interest,  their  honor,  and  their  oaths,  to 
defend  their  king  and  country,  the  whole  of  this  system  of  tenures 
now  tended  to  nothing  else  but  a  wretched  means  of  raising  money  to 


« 2  Bl.  op.  cit.  p.  75. 


14  THE  FEUDAL  SYSTEM  (Ch.  1 

pay  an  army  of  occasional  mercenaries.  In  the  meantime  the  fam- 
ihes  of  all  our  nobility  and  gentry  groaned  under  the  intolerable 
burthens,  which  (in  consequence  of  the  fiction  adopted  after  the  Con- 
quest) were  introduced  and  laid  upon  them  by  the  subtlety  and  finesse 
of  the  Norman  lawyers.  For,  besides  the  scutages  to  which  they  were 
liable  in  defect  of  personal  attendance,  which  however  were  assessed 
by  themselves  in  parliament,  they  might  be  called  upon  by  the  king  or 
lord  paramount  for  aids,  whenever  his  eldest  son  was  to  be  knighted, 
or  his  eldest  daughter  married;  not  to  forget  the  ransom  of  his  own 
person.  The  heir  on  the  death  of  his  ancestor,  if  of  full  age,  was 
plundered  of  his  first  emoluments  arising  from  his  inheritance,  by 
way  of  relief  and  primer  seisin ;  and  if  under  age,  of  whole  of  his 
estate  during  his  infancy.  And  then,  as  Sir  Thomas  Smith®  very  feel- 
ingly complains,  'when  he  came  to  his  own,  after  he  was  out  of 
warship,  his  woods  decayed,  houses  fallen  down,  stock  wasted  and 
gone,  lands  let  forth  and  ploughed  to  be  a  barren,'  to  reduce  him 
still  farther,  he  was  yet  to  pay  half  a  year's  profits  as  a  fine  for  suing 
out  his  livery;  and  also  the  price  or  value  of  his  marriage,  if  he 
refused  such  a  wife  as  his  lord  and  guardian  had  bartered  for,  and 
imposed  upon  him ;  or  twice  that  value  if  he  married  another  woman. 
Add  to  this,  the  untimely  and  expensive  honour  of  knighthood,  to 
make  his  proverty  more  completely  splendid,  And  when  by  these  de- 
ductions his  fortune  was  so  shattered  and  ruined,  that  perhaps  he  was 
obliged  to  sell  his  patrimony,  he  had  not  even  that  poor  privilege  al- 
lowed him  without  paying  an  exorbitant  fine  for  a  license  of  aliena- 
tion." 

In  the  reign  of  James  I  a  proposal  was  made  to  abolish  all  these 
incidents,  but  this  proposal  was  defeated.  On  the  overthrow  of 
Charles  I,  steps  were  taken  to  do  away  with  these  feudal  obligations, 
and  a  statute  to  that  effect  was  enacted  in  1656.  On  the  restoration 
of  Charles  II,  in  1660,  the  statute  was  re-enacted  in  order  to  put  its 
validity  beyond  question.     The  statute  provides  as  follows : 

St.  12  Car.  II  (1660)  c.  2^1 — "An  Act  taking  away  the  Court  of 
Wards  and  Liveries  and  Tenures  in  Capite,  and  by  Knight  Service, 
and  Purveyance,  and  for  settling  a  Revenue  upon  his  Majesty  in  lieu 
thereof. 

"Whereas  it  hath  been  found  by  former  experience  that  the  Court 
of  Wards  and  Liveries  and  tenures  by  knight  service  either  of  the 
king  or  others,  or  by  knight  service  in  capite,  or  socage  in  capite  of 
the  king,  and  the  consequents  upon  the  same,  have  been  much  more 
burthensome,  grievous  and  prejudicial  to  the  kingdom  than  they  havfe 
been  beneficial  to  the  king ;  and  whereas  since  the  intermission  of  the 
said  court,  which  hath  been  from  the  four  and  twentieth  day  of  Feb- 
ruary, which  was  in  the  year  of  our  Lord  one  thousand  six  hundred 
forty  and  five,  many  persons  have  by  will  and  otherwise  made  dis- 

»  Commonwealth  of  England,  bk.  3,  ch.  5. 


Sec.  G)  STATUTORY   CHANGES    IN   THE   FEUDAL  SYSTEM  15 

posal  of  their  lands  held  by  knight  service,  whereupon  divers  questions 
might  possibly  arise  unless  some  seasonable  remedy  be  taken  to  pre- 
vent the  same;  be  it  therefore  enacted  by  the  King  our  Sovereign 
Lord,  with  the  assent  of  the  Lords  and  Commons  in  Parliament  as- 
sembled, and  by  the  authority  of  the  same,  and  it  is  hereby  enacted, 
That  the  Court  of  Wards  and  Liveries,  and  all  Wardships,  liveries, 
primer  seisins  and  ousterlemains,  values  and  forfeitures  of  marriages, 
by  reason  of  any  tenure  of  the  King's  Majesty,  or  of  any  other  by 
knight  service,  and  all  mean  rates,  and  all  other  gifts,  grants,  and 
charges,  incident  or  arising  for  or  by  reason  of  wardships,  liveries, 
primer  seisins,  or  ousterlemains  be  taken  away  and  discharged,  and 
are  hereby  enacted  to  be  taken  away  and  discharged,  from  the  said 
twenty-fourth  day  of  February  one  thousand  six  hundred  forty-five ; 
any  law,  statute,  custom,  or  usage  to  the  contrary  hereof  in  any  wise 
notwithstanding:  And  tliat  all  fines  for  alienations,  seizures,  and 
pardons  for  alienations,  tenure  by  homage,  and  all  charges  incident 
or  arising  for  or  by  reason  of  wardship,  livery,  primer  seisin,  or  ous- 
terlemain,  or  tenure  by  knight  service,  escuage,  and  also  aide  pur  file 
marrier,  et  pur  faire  fitz  chivalier,  and  all  other  charges  incident  there- 
unto, be  likewise  taken  away  and  discharged  from  the  said  twenty- 
fourth  day  of  February  one  thousand  six  hundred  forty  and  five: 
any  law,  statute,  custom,  or  usage  to  the  contrary  hereof  in  any  wise 
notwithstanding;  And  that  all  tenures  by  knight  service  of  the  king, 
or  of  any  other  person,  arid  by  knight  service  in  capite,  and  by  socage 
in  capite  of  the  king,  and  the  fruits  and  consequence  thereof,  hap- 
pened or  which  shall  or  may  hereafter  happen  or  arise  thereupon  or 
thereby,  be  taken  away  and  discharged;  any  law,  statute,  custom,  or 
usage  to  the  contrary  hereof  in  any  wise  notwithstanding.  And  all 
tenures  of  any  honours,  manors,  lands,  tenements,  or  hereditaments, 
of  any  estate  of  inheritance  at  the  common  law,  held  either  of  the 
king  or  of  any  other  person  or  persons,  bodies  politick  or  corporate, 
are  hereby  enacted  to  be  turned  into  free  and  common  socage,  to 
all  intents  and  purposes,  from  the  said  twenty-fourth  day  of  Feb- 
ruary one  thousand  six  hundred  forty-five,  and  shall  be  so  construed, 
adjudged  and  deemed  to  be  from  the  said  twenty- fourth  day  of  Feb- 
ruary one  thousand  six  hundred  forty-five,  and  forever  hereafter, 
turned  into  free  and  common  socage;  any  law,  statute,  custom,  or 
usage  to  the  contrary  hereof  in  any  wise  notwithstanding. 

"2.  And  that  the  same  shall  forever  hereafter  stand  and  be  dis- 
charged of  all  tenure  by  homage,  escuage,  voyages  royal,  and  charges 
for  the  same,  wardships  incident  to  tenure  by  knight's  service,  and 
values  and  forfeitures  of  marriage,  and  all  other  charges  incident  to 
tenure  by  knight  service,  and  of  and  from  aide  pur  file  marrier,  and 
aide  pur  faire  fitz  chivalier ;  any  law,  statute,  usage,  or  custom  to  the 
contrary  in  any  wise  notwithstanding.  And  that  all  conveyances  and 
devises  of  any  manors,  lands,  tenements,  and  hereditaments,  made 
since  the  said  twenty-fourth  day  of  February,  shall  be  expounded  to 


i6  THE    FEUDAL   SYSTEM  (Ch,  1 

be  of  such  effect  as  if  the  same  manors,  lands,  tenements,  and  here- 
ditaments had  been  then  held  and  continued  to  be  holden  in  free  and 
common  socage  only;  any  law,  statute,  custom  or  usage  to  the  con- 
trary hereof  in  any  wise  notwithstanding, 

"3.  And  be  i^  further  ordained  and  enacted  by  the  authority  of  this 
present  Parliament,  That  an  Act  made  in  the  reign  of  King  Henry 
the  Eighth,  intituled  An  Act  for  the  Estabhshment  of  the  Court  of 
the  King's  Wards ;  and  also  one  Act  of  Parliament  made  in  the  thirty- 
third  year  of  the  reign  of  the  said  King  Henry  the  Eighth,  concerning 
the  officers  of  the  Courts  of  Wards  and  Liveries,  and  every  clause, 
article,  and  matter  in  the  said  Acts  contained,  shall  from  henceforth 
be  repealed  and  utterly  void. 

"4.  And  be  it  further  enacted  by  the  authority  aforesaid,  That  all 
tenures  hereafter  to  be  created  by  the  King's  Majesty,  his  heirs  or 
successors,  upon  any  gifts  or  grants  of  any  manors,  lands,  tenements, 
or  hereditaments,  of  any  estate  of  inheritance  at  the  common  law, 
shall  be  in  free  and  common  socage,  and  shall  be  adjudged  to  be  in 
free  and  common  socage  only,  and  not  by  knight  service,  or  in  capite, 
and  shall  be  discharged  of  all  wardship,  value  and  forfeiture  of  mar- 
riage, livery,  primer  seisin,  ousterlemain,  aide  pur  faire  fitz  chivalier 
and  pur  file  marrier;  any  law,  statute  or  reservation  of  the  contrary 
thereof  in  any  wise  notwithstanding. 

"5.  Provided  nevertheless,  and  be  it  enacted.  That  this  Act,  or  any- 
thing herein  contained,  shall  not  take  away,  nor  be  construed  to  take 
away,  any  rents  certain,  heriots,  or  suits  of  court,  belonging  or  inci- 
dent to  any  former  tenure  now  taken  away  or  altered  by  virtue  of 
this  Act,  or  other  services  incident  or  belonging  *to  tenure  in  common 
socage  due  or  to  grow  due  to  the  King's  Majesty,  or  mean  lords,  or 
other  private  person,  or  the  fealty  and  distresses  incident  thereunto ; 
and  that  such  relief  shall  be  paid  in  respect  of  such  rents  as  is  paid 
in  case  of  a  death  of  a  tenant  in  common  socage.    *    *    * 

"7.  Provided  also,  and  be  it  further  enacted.  That  this  Act,  or 
anything  herein  contained,  shall  not  take  away,  or  be  construed  to 
take  away,  tenures  in  frankalmoign,  or  to  subject  them  to  any  greater 
or  other  service  than  they  now  are ;  .nor  to  alter  or  change  any  tenure 
by  copy  of  court  roll,  or  any  services  incident  thereunto ;  nor  to  take 
away  the  honorary  services  of  grand  serjeanty,  other  than  of  ward- 
ship, marriage,  and  value  of  forfeiture  of  marriage,  escuage,  voy- 
ages royal,  and  other  charges  incident  to  tenure  by  knight  service; 
and  other  than  aide  pur  faire  fitz  chivalier,  and  aide  pur  file  marrier." 

The  result  of  this  statute,  although  the  language  of  it  is  con- 
fusing, and  the  statute  is  poorly  drawn,  is  clear.  It  abolished  mili- 
tary tenure.  It  turned  all  tenure  into  free  and  common  socage  apd 
discharged  most  of  even  the  slight  burdens  incident  to  that  tenure. 

It  is  to  be  noticed  that  neither  Quia  Emptores  nor  the  statute  abolish- 
ing the  court  of  wards  and  liveries  affected  the  doctrine  of  tenure  as 
such.     The  theory  of  English  law  is  to-day  what  it  was  eight  hun- 


Sec.  7)  TENURE   IN   THE   UNITED   STATES  17 

dred  years  ago,  namely,  that  the  owner,  even  when  he  has  the  largest 
possible  rights  in  his  land  that  the  law  recognizes,  is  not  the  owner 
of  his  land  in  the  same  sense  that  he  is,  for  example,  the  owner  of 
his  watch.     He  holds  his  land  in  tenure  under  the  sovereign. 


SECTION  7.— TENURE  IN  THE  UNITED  STATES 


The  question  now  remains  for  consideration  as  to  the  nature  of 
land  ownership  in  the  United  States.  Does  a  man  own  his  land,  to 
use  the  illustration  just  given,  in  the  same  completeness  of  ownership 
that  he  owns  his  watch?  This  species  of  ownership  as  applied  to 
land  is  termed  allodial.  Or,  on  the  other  hand,  does  tenure  still  pre- 
vail, at  least  in  legal  theory,  in  the  states  in  this  country  ?  This  ques- 
tion may  be  of  importance  in  two  aspects :  First,  as  to  the  right  of 
escheat ;   second,  as  involving  the  possibility  of  subinfeudation. 

The  doctrine  of  escheat,  strictly  speaking,  depends  on  tenure.  If 
the  owner  of  land  owned  allodially  dies  without  having  disposed  of  his 
land  and  without  leaving  heirs,  unless  the  sovereign  has  made  provi- 
sion by  statute  for  disposing  of  the  title  to  it,  it  would  seem  that  any 
person  who  obtained  possession  of  the  land  could  retain  it  simply 
because  no  one  could  show  a  right  to  put  him  out.  If  the  owner  of 
land  held  in  tenure  dies  under  the  same  state  of  facts,  the  land  will 
^scheat  to  the  overlord. 

The  question  of  subinfeudation  is,  of  course,  closely  associated  with        , , 
the  question  as  to  whether  Quia  Emptores  is  law  in  this  country.   J~      , 
If  the  land  is  owned  allodially,  of  course,  there  can  be  no  question  of  ^^^"^  J!**^ 
subinfeudation.     If  tenure  exists  in  this  country,  then  subinfeudation  ^  ~<-JiL^\jL* 
is  possible  unless  the  doctrine  of  Quia  Emptores  is  to  be  deemed  a    itKf     >.^* .    ; 
part  of  our  law. 

When  the  charters  were  granted  by  the  British  crown  for  the 
various  settlements  in  the  United  States,  most  of  them  contained  pro- 
visions'that  the  land  should  be  held  in  socage  tenure.  Upon  the  Revo- 
lution, it  would  seem  that  the  various  state  governments  succeeded  to 
the  rights  of  the  sovereign,  and  that  consequently  there  would  be  a 
tenure  relation  between  the  owner  of  the  land  and  the  sovereign,  in 
the  character  of  the  state.  In  a  considerable  number  of  the  states,  the 
matter  has  been  settled,  either  by  a  constitutional  provision  or  by  leg- 
islative enactment.  Closely  allied  with  this  question  is  the  question 
as  to  whether  or  not  Quia  Emptores  is  in  force  in  the  United  States. 
Professor  Gray  ^°  states  the  matter  thus: 

"In  this  condition   [i.  e,  with  tenure  no  longer  obtaining]   are  at 

xo  The  Rule  against  Perpetuities  (3d  Kd.)  p.  23. 
Big. Int. — 2 


18  THE  TEDDAL  SYSTEM  (Ch.  1 

least  Connecticut,  New  York,  Maryland,  Virginia,  Ohio,  Wisconsin, 
West  Virginia,  Kentucky,  Minnesota,  and  Arkansas.  *  *  *  j^ 
all  of  the  United  States,  with  the  exception  of  South  Carolina  and 
perhaps  Pennsylvania,  land,  if  held,  at  all,  can  be  held  of  none  but  the 
state ;  for  in  all  the  States,  with  the  two  exceptions,  either  there  is 
no  tenure,  or,  if  there  is  tenure,  the  statute  of  Quia  Emptores  is 
in  force."  ^^ 

11  On  tenure  in  the  United  States  see  Gray,  op.  cit.  §§  22-28;   3  Kent,  Com- 
mentaries, pp.  509-514. 


Sec.  2)  ESTATES  Ift 

CHAPTER  II 
ESTATES 


SECTION  1.— INTRODUCTION 


Up  to  the  present  time  we  have  be^n  considering  the  English  law 
so  far  as  it  related  to  the  framework  or  skeleton  upon  which  the  gen- 
eral system  of  landholding  was  constructed.  We  now  take-up  the  ques- 
tion as  to  the  extent  of  the  interest  that  might  be  had  by  any  particu- 
lar individual  in  a  given  piece  of  land,  or,  as  it  is  technically  called,  the 
extent  of_his  estate  in  the  land.  , 

The  English  law  divides  estates  in  land  into  freehold,  and  nonfree- 
hold^  This  distinction  is  historical  rather  than  logical,  and  the  reason 
for  it  will  be  pointed  out  later.  The  freehold  estates  are  the  fee  simple, 
the^eejajl^  other  qualified,  fees,  and  the  life  estate.  The  nonfreehold 
_estates  are  the  estate  for  years,  from  year  to  year,  at  will,  and  at  suf- 
ferance. 


SECTION  2.— FEES  SIMPLE 


Without  an  attempt  at  an  exact  definition,  it  may  be  said  that  a  per- 
son who  holds  land  in  fee  simple  possesses  the  totality  of  rights  that  a 
man  may  have  with  respect  to  a  piece  of  land.  Among  these  rights 
he  has  the  privileges  of  doing  as  he  sees  fit  with  his  land  and  the  right 
to  be  protected  in  the  exercise  of  these  various  privileges ;  the  limit  of 
these  rights  and  privileges  being  the  point  where  the  exercise  of  them 
is  regarded  as  being  socially  unjustifiable*.  Just  where  the  law  draws 
the  line  as  to  the  privileges  that  a  man  may  exercise  with  respect  to  the 
soil  is  a  question  of  policy  and  expediency  that  need  not  at  present  be 
considered.  The  owner  in  fee  simple  further  has  the  fullest  powers 
of  disposition  over  his  land  that  the  law  recognizes,  and  complete  im- 
munity from  any  control  by  a  third  person,  subject  to  the  legislative 
and  constitutional  powers  of  the  state. 

While  the  exact  nature  of  the  right  that  the  tenant  had  in  his 
land  immediately  after  the  Norman  Conquest  is  not  entirely  clear,  it 
is  probable  that  the  land  was  given  to  him  by  his  overlord  only  for  his 
life.  The  personal  relation  and  confidence  that  existed  between  the 
lord~and  the  tenant  would  make  this  likely  and  this  conclusion  is  corrob- 


20  ESTATES  (Ch.  2 

orated  by  the  existence  of  some  of  the  feudal  incidents.  If,  however, 
the  heir  of  the  tenant  was  a  person  in  whom  the  lord  could  repose  con- 
fidence, it  would  be  natural  that  upon  the  death  of  the  original  tenant 
the  land  should  be  continued  by  the  lord  in  the  possession  of  the  heir. 
Where  the  tenure  was  agricultural,  and  lacking  the  personal  element 
that  existed  in  military  tenure,  such -would  be  even  more  hkely  to  be 
the  case.  As  the  practice  became  confirmed,  and  partly  as  tending  to 
confirm  it,  the  custom  gradually  grew  up  of  indicating  in  the  gift  of  the 
land  to  the  first  tenant  that  it  should  go  on  his  death  to  his  heirs.  It  is 
at  this  point  that  we  see  the  beginnings  of  an  interesting  and  technical. 

.doctrine  of  our  laws.  If  the  lord  by  such  a  conveyance  gave  the  land 
expressly  to  B.  and  his  heirs,  and  if  B.  during  his  life  aliened  the  land 
to  C,  the  natural  construction  to  be  put  upon  the  terms  of  the  gift 
would  be  that  B.  had  an  interest  in  the  land  only  for  liis  pwn  life.  This 
interest  he  might  conceivably  enough  transfer  to  C,  but  C.'s  interest 
could  be  no  larger  than  B.'s,  and  consequently,  after  the  death  of  B., 
B.'s  heirs  would  be  able  to  regain  the  land  from  C.  Such  was  appar- 
ently the  earlier  law.  Later,  however  (that  is,  by  the  13th  century),  we 
find  the  rule  of  law  to  be  pretty  definitely  established  otherwise.  This 
result  is  expressed  in  a  doctrine  and  formula  of  a  highly  technical  na- 
ture, but  of  so  much  importance  in  the  law  of  real  property  as  to  re- 
quire some  consideration. 

As  has  already  been  said,  it  would  seem  that  the  natural  construc- 
tion of  the  phrase  "to  B.  and  his  heirs"  would  be  that  the  subject-mat- 
ter of  the  conveyance  was  given  to  B.  for  his  life  and  after  his  death 
to  his  heir;  in  other  words,  that  the  heir  would  take  the  land  after 
B.'s  death,  not  as  taking  something  coming  to  him  from  B.,  but  be- 
cause he  was  the  person  intended  by  the  original  lord  to  be  the  next  one 
to  have  the  land.  To  state  this  idea  in  technical  language,  it  is  neces- 
sary to  call  attention  to  the  precise  meaning  of  two  legal  terms,  "de- 
scent" and  "purchase."    A  person  is  said  to  take  land  by  descent  when 

^Jitle  to  the  land  passes  to  him  by  operation  of  law ;  he  is  said  to  take 
by  purchase  when  the  title  passes  to  him  by  act  of  the  partfes.  •  TSTow, 
to  state  technically  the  natural  construction  to  be  put  upon  the  phrase 
under  consideration,  it  would  seem  that  the  heir  after  the  death  of  B. 
would  take  the  property  by  purchase ;  that  is,  because  he  is  indicated 
by  A.  as  the  person  to  take  it.  As  has  already  been  said,  however,  by 
the  13th  century,  the  doctrine  seems  to  have  been  definitely  established 
that,  if  B.  conveyed  the  estate  during  his  life,  the  heir  would  get  no 
interest  in  it  after  B.'s  death ;  that  is,  the  function  of  the  phrase  "to 
his  heirs"  was  construed  as  being,  not  to  indicate  the  person  who  would 
take  the  land  after  B.'s  death,  but  to  mark  out  or  delimit  the  size  of  the 
estate  that  B.  had,  as  the  largest  possible  estate  that  could  be  given.  In 
other  words,  to  put  it  technically,  the  phrase  "to  his  heirs"  was  treated 
as  a  phrase  of  limitation,  and  not  of  purchase. 

Once  this  construction  of  the  phrase  in  question  had  been  definitely 


Sec.  2)  FEKS  SIMPLE  21 

established  as  a  part  of  the  law  of  fees  simple,  it  led  to  consequences 
far-reaching  and  important.  Suppose  the  terms  of  the  gift,  instead  of 
being  to  B.  and  his  heirs,  are  to  B.  for  life  and  on  B.'s  death  to  B.'s 
heirs.  This  limitation,  though  longer,  in  fact  says  nothing  more  than 
would  the  shorter  phrase  already  considered,  if  the  shorter  phrase  were 
to  receive  its  natural  construction.  Since  the  two  phrases  were  in  nat- 
ural construction  identical,  and  since  it  had  been  definitely  established 
with  respect  to  the  shorter  phrase  that  the  phrase  "to  his  heirs"  was  a 
jphrase^  of  limitation,  and  not  of  purchase,,  the  same  reasoning  was  ap- 
plied to  the  longer  phrase ;  that  is,  it  was  construed  to  vest  a  fee  simple 
in  B.  Of  course,  if  B.  died  without  having  aliened  the  land,  it  would 
go  to  B.'s  heirs ;  but  it  would  go  to  them  by  descent,  and  not  by  pur- 
chase. The  doctrine  just  outlined  was  first  established  by  a  decision 
in  1324,^  and  illustrates  the  simplest  form  of  the  Rule  in  Shelley's 


Case,  so  called  after  a  decision  in  Lord  Coke's  time  in  which  the  doc- 
trine was  reasserted.^  The  rule  may  be  formulated  thus :  Where  an 
estate  is  given  to  the  ancestor  for  life,  and  by  the  same  instrument  an 
immediate  estate  is  given  to  his  heir  in  fee,  the  result  is  to  give  the 
ancestor  a  fee  simple.  The  artificial  character  of  this  reasoning  is 
clear,-  and  of  course  the  application  of  it  will  frequently  operate  to 
defeat  the  intention  of  the  person  making  the  conveyance.  At  the  same 
time  the  idea  that  is  worked  out  in  it  seems  to  represent  a  fundamental 
principle,  of  the  policy  of  the  English  law  with  respect  to  ownership 
of  land,  namely,  that  the  owner  of  it  should  be  able  freely  to  alienate 
rt  The  struggle  in  English  law  between  the  two  conflicting  princi- 
ples of  freedom  of  alienation  and  restriction  of  alienation  still  con- 
tinues. 

One  other  consequence  that  should  be  noticed  in  respect  to  the  doc- 
trine which  we  have  been  considering  is  this :  Since  a  conveyance  to  B. 
and  his  heirs  gives  B.  a  fee  simple,  the  converse  is  also  true.  With  a 
few  rare  exceptions,  the  only  method  under  English  law  whereby  an 
estate  in  fee  simple  could  be  created  was  by  a  conveyance  in  terms  to 
B.  and  "his  heirs."  No  other  phrase  would  take  the  place  of  this  magic 
formula." 

1  Y.  B.  18  Edw.  II,  577.  See  7  Man.  &  G.  941,  note.  It  has  been  .suggested 
(see  Tiedeman,  Real  Prop.  [2d  Ed.]  §  433)  that  the  origin  of  the  doctrine  is 
to  be  accounted  for  thus:  In  the  14th  century  it  would  not  have  been  pos- 
sible to  regard  the  phrase  "to  the  heirs"  as  creating  any  legal  interest  in 
them,  for  the  reason  that  since  the  heirs  of  the  grantee  could  not  be  known 
until  his  death,  this  would  be  a  contingent  remainder,  (see  post,  p.  39).  and 
in  the  14th  century  such  a  remainder  was  not  recognized  as  a  legally  pos- 
sible interest.  Consequently,  to  give  any  effect  at  all  to  these  words  of  the 
grantor,  it  was  necessary  to  put  upon  them  the  construction  that  was  adopted. 

-  Shelley's  Case,  1  Co.  93a  (1581). 

3  On  the  fee  simple  see  Litt.  §§  1,  2;  2  Bl.  op.  eit.  104-109;  2  Poll.  &  Mait. 
op.  cit.  pp.  13-16;  Williams,  op.  cit.  ch.  II;  Leake,  Digest  of  the  Law  of 
Property  in  Land  (2d  Ed.)  pp.  22-24. 


^.^ 


22  ESTATES  (Ch.  2 


SECTION  3.— FEES  CONDITIONAL  AND  FEES  TAIL 


Another  very  old  form  of  limiting  the  size  of  the  estate  which  was 
given  to  the  tenant  was  this :  "To  B.  and  the  heirs  of  his  body."  After 
the  courts  had  held  that  the  tenant  in  fee  simple,  had  complete  powers 
of  alienation  and  had  adopted  the  construction  of  the  phrase  "to  B.  and 
his  heirs"  as  stated  in  the  preceding  section,  it  might  still  be  possibl-e  to 
limit  the  freedom  of  alienation  of  B.  and  to  keep  the  estate  in  a  definite 
line  of  descent  by  using  the  narrower  form  of  limitation  above  given. 
The  same  liberalizing  tendencies,  however,  on  the  part  of  the  courts, 
were  at  work  also  in  regard  to  this  narrower  limitation.  By  the  middle 
of  the  13th  century  the  construction  that  was  put  upon  the  phrase  was 
that  the  conveyance  was  to  B.  upon  condition  that  he  should  have  heirs 
to  his  body.  Once  the  condition  was  satisfied  by  the  birth  of  an  heir, 
B.  then  had  the  power  to  create  a  fee  simple  in  a  third  person  by  con- 
veying the  estate  to  him.  This  construction,  of  course,  defeated  the 
aim  of  the  overlord  to  keep  the  estate  in  a  particular  line  of  descent. 
It  was  to  check  this  tendency,  and  force  the  retention  of  an  estate  given 
to  a  man  and  the  heirs  of  his  body  in  the  line  of  descent  marked  out 
by  the  terms  of  the  gift,  that  there  was  passed  in  the  year  1285  the 
statute  De  Donis  Conditionalibus.    The  statute  is  as  follows : 

St.  13  Edw.  I— St.  of  Westm.  II  (1285)  c.  1,  De  Donis  Condition- 
alibus : 

"First,  concerning  lands  that  many  times  are  given  upon  condition, 
that  is,  to  wit,  where  any  giveth  his  land  to  any  man  and  his  wife, 
and  to  the  heirs  begotten  of  the  bodies  of  the  same  man  and  his  wife, 
with  such  condition  expressed  that  if  the  same  man  and  his  wife  die 
without  heir  of  their  bodies  between  them  begotten,  the  land  so  given 
shall  revert  to  the  giver  or  his  heir ;  in  case  also  where  one  giveth  lands 
in  free  marriage,  which  gift  hath  a  condition  annexed,  though  it  be 
not  expressed  in  the  deed  of  gift,  which  is  this,  that  if  the  husband 
and  wife  die  without  heirs  of  their  bodies  begotten,  the  land  so  given 
shall  revert  to  the  giver  or  his  heir;  in  case  also  where  one  giveth 
land  to  another  and  the  heirs  of  his  body  issuing,  it  seemed  very  hard 
and  yet  seemeth  to  the  givers  and  their  heirs,  that  their  will  being 
expressed  in  the  gift  was  not  heretofore  nor  yet  observed.  In  all  the 
cases  aforesaid  after  issue  begotten  and  born  between  them,  to  whom 
the  lands  were  given  under  such  condition,  heretofore  such  feoffees 
had  power  to  aliene  the  land  so  given,  and  to  disinherit  their  issue  of 
the  land,  contrary  to  the  minds  of  the  givers,  and  contrary  to  the  form 
expressed  in  the  gift:  and  further,  when  the  issue  of  such  feoffee  is 
failing,  the  land  so  given  ought  to  return  to  the  giver  or  his  heir  by 
form  of  gift  expressed  in  the  deed,  though  the  issue,  if  any  were,  had 


Sec.  3)  FEES   CONDITIONAL   AND   FEES   TAIL  23 

died;  yet  by  the  deed  and  feoffment  of  them  to  whom  land  was  so 
given  upon  condition,  the  donors  have  heretofore  been  barred  of  their 
reversion  of  the  same  tenements  which  was  directly  repugTiant  to  the 
form  of  the  gift :  wherefore  our  lord  the  king,  perceiving  how  neces- 
sary and  expedient  it  should  be  to  provide  remedy  in  the  'aforesaid  cas- 
es, hath  ordained,  that  the  will  of  the  giver  according  to  the  form  in  the 
deed  of  gift  manifestly  expressed  shall  be  from  henceforth  observed,  so 
that  t"Eey  to  whom  the  land  was  given  under  such  condition  shall  have 
no  power  to  aliene  the  land  so  given,  but  that  it  shall  remain  unto  the 
issue  of  them  to  whom  it  was  given  after  their  death,  or  shall  revert 
unto  the  giver  or  his  heirs  if  issue  fail  either  by  reason  that  there  is  no 
issue  at  all,  or  if  any  issue  be,  it  fail  by  death,  the  heir  of  such  issue 
failing.  Neidier  shall  the  second  husband  of  any  such  woman  from 
henceforth  have  anything  in  the  land  so  given  upon  condition  after  the 
death  of  his  wife,  by  the  land  of  England,  nor  the  issue  of  the  second 
husband  and  wife  shall  succeed  in  the  inheritance,  but  immediately 
after  the  death  of  the  husband  and  wife,  to  whom  the  land  was  so 
given,  it  shall  come  to  their  issue  or  return  unto  the  giver  or  his  heir  as 
before  is  said.  *  *  *  /^^d  it  is  to  wit  that  this  statute  shall  hold 
place  touching  alienation  of  land  contrary  to  the  form  of  gift  here- 
after to  be  made,  and  shall  not  extend  to  gifts  made  before.  And  if  a 
fine  be  levied  hereafter  upon  such  lands  it  shall  be  void  in  the  law,  nei- 
ther shall  the  heirs  or  such  as  the  reversion  belongeth  unto,  though  they 
be  of  full  age,  within  England,  and  out  of  prison,  need  to  make  their 
claim." 

The  language  of  the  statute  requires  no  extended  comment.  The  re- 
sult of  it  was  that  the  old  common-law  conditional  fee  could  no  longer 
be  created  and  in  the  place  of  it  there  came  into  being,  as  a  result  of 
the  statute,  the  fees_tail,  from  the  old  French,  "talliare,"  meaning  to  ^T^ 
cut  or  limit.  Estates  tail  are  classified  as  general  or  special  tail.  An 
estate  tail  general  is  to^A.  and  the  heirs  of  his  body.  An  estate  tail 
_s2ecial  may  be  to  A.  and  the  heirs  male  of  his  body,  or  to  A.  and  the 
heirs  female  of  his  body,  or  to  A.  and  the  heirs  of  his  body  by  a  par- 
ticujar  wife.  With  regard  to  any  of  the  estates  tail  the  property  will 
continue  in  the  line  of  the  descent  indicated  by  the  terms  of  the  gift  so 
long  as  that  line  continues.  If  the  line  runs  out,  the  property  will  then 
pass  to  the  next  person  legally  entitled  to  it  according  to  the  terms  of 
the  original  grant,  such  person  being  known  as  a  remainderman,  or  if 
there  is  no  legal  estate  in  remainder  the  property  will  then  return  to 
the  original  creator  of  the  estate,  or  to  his  heirs.  Estates  in  remainder 
and  cognate  matters  will  be  considered  in  detail  subsequently. 

The  policy  of  thus  restraining  alienation  in  estates  of  this  character, 
as  established  by  De  Donis,  continued  to  be  effective  for  about  200 
years.  There  were,  however,  numerous  objections  to  it,  and  these  ob- 
jections constantly  grew  in  force.  It  was  unsafe  for  a  person  to  buy 
land,  or  to  take  a  long-term  lease  of  it,  since  there  was  always  the  pos- 


^^ 


24  ESTATES  (Ch.  2 

sibility  that  the  land  was  entailed,  and,  if  such  was  the  case,  the  pur- 
chaser, regardless  of  his  good  faith,  would  be  ousted  at  the  end  of  the 
life  of  the  tenant  from  whom  he  purchased.  The  king  also  objected 
to  this  sort  of  estate,  for  the  reason  that  the  treason  of  a  tenant  in  tail 
would  result  merely  in  forfeiting  his  life  interest  in  the  premises. 

The  result  of  these  various  objections  against  the  estate  tail  was  that 
in  1472  (12  Edw.  IV)  the  judges  sanctioned  a  method  of  evading  the 
effect  of  the  statute,  by  means  of  fictitious  litigation.  The  fictional 
character  of  the  whole  proceeding  is  so  obvious  that  it  is  clear  that 
there  must  have  been  strong  feeling  of  policy  to  have  induced  the 
judges  to  permit  it.  The  case  in  which  this  possibility  was  first  recog- 
nized is  Taltarum's  Case.*  The  common  recovery  was  a  very  old  form 
of  action,  used,  as  its  name  would  indicate,  to  recover  the  possession  of 
land.  The  steps  by  which  it  was  allowed  to  bar  the  entail  were  these : 
The  principle  had  already  become  established  that  a  tenant  in  tail  could 
convey  a  fee  simple  and  so  bar  his  heirs,  providing  he  left  assets  equal 
in  value  to  the  land.  This  was  then  enlarged  into  the  proposition  that 
he  could  so  convey  if  he  left  for  his  heirs  a  judgment  for  the  value  of 
the  land  so  conveyed.  These  principles  were  combined  in  the  common 
recovery  in  this  fashion.  If  B.,  the  tenant  in  tail,  wished  to  convey  the 
land  to  C.  in  fee,  C.  would  bring  by  agreement  a  common  recovery 
against  B.  B.  would  allege  that  he  had  derived  title  in  the  land  from 
X.,  and  would  ask  that  X.  be  called  in  to  defend  the  case.  X.,  upon 
being  called  in,  would,  in  accordance  with  the  agreement  between  him- 
self and  B.,  admit  that  he  had  conveyed  the  land  to  B.,  but  that  he  had 
no  defense  to  C.'s  action.  Judgment  would  thereupon  be  given  that  C. 
should  recover  the  land  in  accordance  with  the  terms  of  his  allegation 
that  he  was  entitled  to  it  in  fee  simple.  B.  and  B.'s  heirs  would  be  given 
what  in  legal  theory  was  an  adequate  recompense  in  the  shape  of  a 
judgment  against  X.  for  other  lands  of  equal  value  in  respect  of  which 
A.'s  interest  as  reversioner  would  also  theoretically  attach.  Since, 
however,  X.  was  always  chosen  for  the  part  that  he  played,  for  the 
very  reason  that  he  was  entirely  irresponsible  financially,  the  judgment 
against  him,  although  adequate  on  the  face  of  it,  was,  as  was  intended 
from  the  beginning,  in  fact  worthless,  and  the  net  result  of  the  trans- 
action was  that  C.  obtained  the  land  in  fee  simple  and  that  the  entailed 
line  and  the  rights  of  the  origmal  donor  of  the  land  were  barred. 

It  will  be  noted  that  in  De  Donis  it  is  provided  that  the  rights  of 
the  heirs  in  tail  or  of  the  donor  shall  not  be  prejudiced  by  the  levying 
of  a  fine.  The  fine  was  another  form  of  lawsuit  frequently  used  in 
order  to  transfer  title  to  land.  After  the  doctrine  had  been  estab- 
lished that  an  estate  tail  could  be  transformed  into  a  fee  simple  by  a 
common  recovery,  a  somewhat  similar  effect  was  given  by  statute  to 
the  levying  of  a  fine.  The  difference  was  that  a  common  recovery  bar- 
red  both  the  entail  and  the  donor,  whereas  a  fine  barred  only  the  entail. 

*  Y.  B.  12  Edw.  IV,  19  (1472). 


Sec.  4)  DETERMINABLE   FEES  25 

Estates  tail  may  now  be  barred  in  England  by  a  deed  in  ordinary 
form,  and  a  fee  simple  thereby  vested  in  the  grantee. 

In  the  United  States  fees,  tail  are  possible,  although  rare.  Roughly 
speaking,  it  may  be  said  that  three  different  methods  have  been  adopted 
in  dealing  with  them :  In  some  of  the  states  a  conveyance  to  A.  and 
the  heirs  of  his  body  gives  A.  a  life  estate,  followed  by  an  estate  in 
fee  to  the  first  heir  who  at  common  law  would  take  under  the  entail. 
In  some  states  such  a  limitation  operates  merely  to  create  a  fee  simple 
in  A.  In  other  states  the  result  is  to  create  a  true  estate  tail,  but  any 
tenant  in  tail  may  destroy  it  by  an  ordinary  deed  conveying  the  prem- 
ises in  fee  simple."* 


SECTION  4.— DETERMINABLE  FEES 


A  question  which  is  too  difficult  to  do  more  than  touch  on  in  the 
present  treatise  should  be  briefly  mentioned.  That  is  whether  it  is  pos- 
sible to  create  a  fee  (that  is,  an  estate  which  may  last  forever)  with  a 
limitation  other  than  as  a  fee  tail.  It  seems  clear  that  at  least  one  fee  of 
this  character  can  be  created.  In  referring  to  the  possibilities  of  con- 
veying an  estate  in  fee  simple  by  the  levying  of  a  fine  by  the  tenant  in 
tail,  attention  was  called  to  the  fact  that  the  fee  so  created  would  last 
only  as  long  as  the  entailed  line  lasted.  This  fee  is  what  is  technically 
known  as  a  "base  fee." 

The  following  situation  raises  a  more  doubtful  question :  A.  conveys 
land  to  B.  and  his  heirs  for  so  long  as  they  continue  to  occupy  it  in  per- 
son. If  at  any  time  they  cease  so  to  do,  may  A.  then  re-enter  into  the 
land  ?  If  this  conveyance  is  covered  by  Quia  Emptores,  it  is  clear  that 
A.  cannot  do  so.  His  right  can  exist  only  if  there  is  a  relation  of  tenure 
between  him  and  B.,  and  the  eflfect  of  the  statute  would  be  to  cut  off 
any  such  relation  between  himself  and  B.,  and  B.  would  seem  conse- 
quently to  have  a  fee  simple  absolute  in  the  land.  If,  on  the  other  hand, 
the  statute  applies  only  to  the  case  of  a  fee  simple  absolute,  then  A. 
would  still  retam  such  an  interest  in  the  land  as  would  authorize  h'im  to 
enter  upon  the  violation  of  the  terms  on  which  it  was  held.  Some  de- 
cisions seem  to  indicate  that  the  statute  does  not  apply  to  this  case,  and 
that  consequently  that  it  is  still  possible  to  create  this  fee  which  is  tech- 
nically called  a  determinable  fee.  The  matter,  however,  cannot  be 
deemed  free  from  doubt.' 

B  On  fees  conditional  and  tail  see  2  Bl.  op.  cit.  pp.  100-120;  2  Poll.  &  Mait. 
op.  cit.  pp.  16-20;  Co.  JAtt.  §§'13-19,  21-24;  Williams,  op.  cit.  cb.  Ill; 
Leake,  op.  cit.  pp.  24-28;  Challis,  Keal  Property  (3d  Ed.)  eb.  XVIII. 

6  On  determinable  fees  see  Cballis,  op.  cit  chs.  XVII,  XIX,  App.  IV ; 
Gray,  op.  cit.  §§  31-^1,  App.  E. 


26  ESTATES  (Ch.  2 

SECTION  5.— ESTATES  FOR  LIFE 


With  the  estate  for  Hfe  we  take  up  the  most  limited  of  the  freehold 
estates.  The  owner  of  a  fee  simple  or  a  fee  tail,  convertible  either  by  a 
common  recovery  or  otherwise  into  a  fee  simple,  has  the  utmost  priv- 
ileges that  can  be  exercised  by  any  person  in  respect  to  land.  He  may 
cut  down  the  timber,  destroy  the  houses,  or  in  any  other  manner  deal 
with  the  property  as  he  pleases.  This  is  not  true  of  the  tenant  for  life. 
His  privileges  of  user  and  his  powers  of  disposal  of  the  property  are 
limited. 

Estates  for  life  are  ordinarily  divided  into  two  sorts,  yiz. :  Estates 
created  by  act  of  the  party,  and  estates  created  by  operation  of  law. 
We  shall  deal  with  each  in  turn. 

Estates  for  life  created  by  act  of  the  parties  may  be  either  an  estate 
for  the  life  of  the  tenant,  or  an  estate  for  the  life  of  some  third  person 
or  persons.  The  simplest  case  is  where  A.,  owning  in  fee,  grants  to  B. 
for  B.'s  life.  When  B.  dies,  his  estate  naturally  comes  to  an  end. 
If  the  estate  is  granted  to  B.  for  any  indeterminate  period,  so  that  the 
earliest  possible  moment  at  which  the  estate  must  terminate  is  B.'s 
death,  this  is  also  a  Hfe  estate;  as,  for  example,  where  the  estate  is 
given  to  B.  so  long  as  he  remains  unmarried. 

If  A.  grants  to  B.  to  hold  during  the  hfe  of  C,  this  is  what  is  tech- 
nically known  as  an  estate  d'autre  vie.  If  C.  dies  while  B.  is  still  alive, 
B.'s  estate,  of  course,  comes  to  an  end,  and  A.  is  entitled  to  re-enter 
the  land,  A  more  difficult  problem  arises  if  B.  dies  first.  Suppose  that, 
after  the  death  of  B.,  X,,  a  stranger,  takes  possession  of  the  land.  A. 
cannot  evict  him  because,  by  the  terms  of  his  grant  to  B.,.A.  would  have 
no  right  to  enter  until  the  death  of  C.  A.'s  overlord  cannot  claim  it  on 
the  ground  of  escheat,  because  there  is  no  escheat,  except  in  the  case  of 
a  fee  simple.  C.  cannot  claim  it,  because  his  life  is  used  merely  as  a 
means  of  measuring  the  duration  of  the  estate,  and  not  to  confer  any 
beneficial  interest.  B.'s  heir  cannot  enter,  because  B.'s  estate  was  not 
an  estate  of  inheritance.  The  result  is  that  X.  is  enabled  to  hold  the 
land  as  long  as  C. -Uves,  merely  because  there  is  no  one  legally  able 
to  put  him  out.  C.  is  technically  known  as  a  general  occupant.  This 
common-law  doctrine  has  now  been  changed  by  statutes.  B.  may 
leave  the  land  by  will,  and,  if  he  does  not  do  so,  it  goes  under  some 
statutes  as  his  real  property,  and  under  other  statutes  as  his  personal 
property.  If  the  land  is  conveyed  by  A.  to  B.  and  his  heirs  for  the  life 
of  C.,  the  heir  would  take  in  that  case  after  B.'s  death  as  special  occu- 
pant, taking  by  purchase  and  not  by  descent.'' 

The  life  estates  created  by  operation  of  law  are  of  three  sorts: 

T  See  Co.  Litt.  41b-42b ;   Leake,  op.  cit,  144-149 ;   Williams,  op.  cit.  110-116. 


Sec.  5)  ESTATES   FOR    LIFE  27 

Curtesy,  dower,  and  tenant  in  special  tail  with  possibility  of  issue 
extinct.  The  estates  of  dower  and  curtesy  and  their  various  incidents 
are  well  described  by  Blackstone.^ 

"Tenant  by  the  curtesy  of  England,  is  where  a  man  marries  a 
woman  seised  of  an  estate  of  inheritance,  that  is,  of  lands  and  tene- 
ments in  fee  simple  or  fee  tail;  and  has  by  her  issue,  born  alive, 
which  was  capable  of  inheriting  her  estate.  In  this  case  he  shall,  on 
the  death  of  his  wife  hold  the  lands  for  his  life,  as  tenant  by  the 
curtesy  of  England.     *     *     * 

"There  are  four  requisites  necessary  to  make  a  tenancy  by  the 
curtesy:  Marriage,  seisin  of  the  wife,  issue,  and  death  of  the  wife. 
1.  The  marriage  must  be  canonical  and  legal.  2.  The  seisin  of  the 
wife  must  be  an  actual  seisin,  or  possession  of  the  lands ;  not  a  bare 
right  to  possess,  which  is  a  seisin  in  law,  but  an  actual  possession, 
which  is  a  seisin  in  deed.  And  therefore  a  man  shall  not  be  tenant 
by  the  curtesy  of  a  remainder  or  reversion.  *  *  *  jf  t^g  ^{fe  be 
an  idiot,  the  husband  shall  not  be  tenant  by  the  curtesy  of  her  lands; 
for  the  king  by  prerogative  is  entitled  to  them,  the  instant  she  her- 
self has  any  title;  and  since  she  could  never  be  rightfully  seised  of 
the  lands,  and  the  husband's  title  depends  entirely  upon  her  seisin,  the 
husband  can  have  no  title  as  tenant  by  the  curtesy.  3.  The  issue  must 
be  born  alive.  Some  have  had  a  notion  that  it  must  be  heard  to  cry; 
but  that  is  a  mistake.  Crying  indeed  is  the  strongest  evidence  of  its 
being  born  alive ;  but  it  is  not  the  only  evidence.  The  issue  also  must 
be  born  during  the  life  of  the  mother:  for  if  the  mother  dies  in  labour, 
and  the  Caesarean  operation  is  performed,  the  husband  in  this  case 
shall  not  be  tenant  by  the  curtesy;  because  at  the  instant  of  the 
mother's  death  he  was  not  clearly  entitled,  as  having  had  no  issue 
born,  but  the  land  descended  to  the  child  while  he  was  yet  in  his 
mother's  womb;  and  the  estate  being  once  so  vested,  shall  not  after- 
wards be  taken  from  him.  In  gavelkind  lands,  a  husband  may  be 
tenant  by  the  curtesy,  without  having  any  issue.  But  in  general  there 
must  be  issue  bom:  and  such  issue  as  is  also  capable  of  inheriting 
the  mother's  estate.  Therefore,  if  a  woman  be  tenant  in  tail  male, 
and  hath  only  a  daughter  born,  the  husband  is  not  thereby  entitled  to 
be  tenant  by  the  curtesy;  because  such  issue  female  can  nc.^er  inherit 
the  estate  in  tail  male.  And  this  seems  to  be  the  principal  reason  why 
the  husband  cannot  be  tenant  by  the  curtesy  of  any  lands  of  which  the 
wife  was  not  actually  seised ;  because,  in  order  to  entitle  himself  to 
such  estate,  he  must  have  begotten  issue  that  may  be  heir  to  the 
wife:  but  no  one,  by  the  standing  rule  of  law,  can  be  heir  to  the 
ancestor  of  any  land  whereof  the  ancestor  was  not  actually  seised; 
and  therefore,  as  the  husband  hath  never  begotten  any  issue  that  can 
be  heir  to  those  lands,  he  shall  not  be  tenant  of  them  by  the  curtesy. 
And  hence  we  may  observe,  with  how  must  nice'y  and  consideration 

8  2  Com.  126  et  seq.    See,  also,  Co.  Lit.  29a-30a,  31u-33b= 


28  ESTATES  '  (Ch.  2 

the  old  rules  of  law  were  framed ;  and  how  closely  they  are  connected 
and  interwoven  together,  supporting,  illustrating,  and  demonstrating 
one  another.  The  time  when  the  issue  was  born  is  immaterial,  pro- 
vided it  were  born  during  the  coverture:  for,  whether  it  were  born 
before  or  after  the  wife's  seisin  of  the  lands,  whether  it  be  living  or 
dead  at  the  time  of  the  seisin,  or  at  the  time  of  the  wife's  decease, 
the  husband  shall  be  tenant  by  the  curtesy.  The  husband  by  the  birth 
of  the  child  becomes  (as  was  before  observed)  tenant  by  curtesy 
initiate  and  may  do  many  acts  to  charge  the  lands ;  but  hij  estate  is 
not  consummate  till  the  death  of  the  wife;  which  is  the  fourth  and 
last  requisite  to  make  a  complete  tenant  by  the  curtesy. 

"Tenant  in  dower  is  where  the  husband  of  a  woman  is  seised  of 
an  estate  of  inheritance,  and  dies;  in  this  case,  the  wife  shall  have 
the  third  part  of  all  the  lands  and  tenements  whereof  he  was  seised 
at  any  time  during  the  coverture,  to  hold  to  herself  for  the  term  of  her 
natural  life.     ♦     *     * 

"In  treating  of  this  estate,  let  us,  first,  consider  who  may  be  en- 
dowed; secondly,  of  what  she  may  be  endowed;  thirdly,  the  manner 
how  she  shall  be  endowed;  and  fourthly,  how  the  dower  may  be 
barred  or  prevented. 

"1.  Who  may  be  endowed?  She  must  be  the  actual  wife  of  the 
party  at  the  time  of  his  decease.  If  she  be  divorced  a  vinculo  matri- 
monii, she  shall  not  be  endowed;  for  ubi  nullum  matrimonium  ibi 
nulla  dos.  But  a  divorce  a  mensa  et  thoro  only,  does  not  destroy  the 
dower;  no,  not  even  for  adultery  itself  by  the  common  law.'  Yet 
now  by  the  statute  Westm.  2,  if  a  woman  voluntarily  leaves  (which 
the  law  calls  eloping  from)  her  husband,  and  lives  with  an  adulterer, 
she  shall  lose  her  dower,  unless  her  husband  be  voluntarily  reconciled 
to  her.  It  was  formerly  held,  that  the  wife  of  an  idiot  might  be  en- 
dowed, though  the  husband  of  an  idiot  could  not  be  tenant  by  the 
curtesy;  but  as  it  seems  to  be  at  present  agreed,  upon  principles  of 
sound  sense  and  reason,  that  an  idiot  cannot  marry,  being  incapable  of 
consenting  to  any  contract,  this  doctrine  cannot  now  take  place.    *    *    * 

"2.  We  are  next  to  inquire,  of  what  may  a  wife  be  endowed? 
And  she  is  now  by  law  entitled  to  be  endowed  of  all  lands  and  tene- 
ments, of  which  her  husband  was  seised  in  fee  simple  or  fee  tail, 
at  any  time  during  the  coverture;  and  of  which  issue,  which  she 
might  have  had,  might  by  possibility  have  been  heir.  Therefore,  if  a 
man  seised  in  fee  simple,  hath  a  son  by  his  first  wife,  and  after  mar- 
ries a  second  wife,  she  shall  be  endowed  of  his  lands ;  for  her  issue 
might  by  possibility  have  been  heir,  on  the  death  of  the  son  by  the 
former  wife.  But  if  there  be  a  donee  in  special  tail  who  holds  lands 
to  him  and  the  heirs  of  his  body  begotten  on  Jane  his  wife;  though 
Jane  may  be  endowed  of  these  lands,  yet  if  Tane  dies,  and  he  marries 
a  second  wife,  that  second  wife  shall  never  oe  endowed  of  the  lands 
entailed ;  for  no  issue  that  she  could  have,  could  by  any  possibility 
inherit  them.     A  seisin  in  law  of  the  husband  will  be  as  effectual  as  a 


Sec.  5)  ESTATES  FOB  LIFE  29 

seisin  in  deed,  in  order  to  render  the  wife  dowable ;  for  it  is  not  in 
the  wife's  power  lo  bring  the  husband's  title  to  an  actual  seisin,  as 
it  is  in  the  husband's  power  to  do  with  regard  to  the  wife's  lands: 
which  is  one  reason  why  he  shall  not  be  tenant  by  the  curtesy,  but 
of  such  lands  whereof  the  wife,  or  he  himself  in  her  right,  was  ac- 
tually seised  in  deed.  The  seisin  of  the  husband,  for  a  transitory 
instant  only,  when  the  same  act  which  gives  him  the  estate  conveys  it 
also  out  of  him  again  (as  where,  by  a  fine,  land  is  granted  to  a  man, 
and  he  immediately  renders  it  back  by  the  same  fine),  such  a  seisin 
will  not  entitle  the  wife  to  dower ;  for  the  land  was  merely  in  transitu, 
and  never  rested  in  the  husband,  the  grant  and  render  being  one  con- 
tinued act.     But  if  the  land  abides  in  him  for  the  interval  of  but  a 

single  moment,   it   seems   that  the  wife   shall  be  endowed   thereof. 

*  *    * 

"3.  Next,  as  to  the  manner  in  which  a  woman  is  to  be  endowed. 

♦  *     * 

"By  the  old  law,  grounded  on  the  feudal  exactions,  a  woman  could 
not  be  endowed  without  a  fine  paid  to  the  lord;  neither  could  she 
marry  again  without  his  license:  lest  she  should  contract  herself,  and 
so  convey  part  of  the  feud,  to  the  lord's  enemy.  This  license  the  lords 
took  care  to  be  well  paid  for ;  and,  as  it  seems,  would  sometimes  force 
the  dowager  to  a  second  marriage,  in  order  to  gain  the  fine.  But, 
to  remedy  these  oppressions,  jt  was  provided,  first  by  the  charter  of 
Henry  I,  and  afterwards  by  Magna  Carta,  that  the  widow  shall  pay 
nothing  for  her  marriage,  nor  shall  be  distrained  to  marry  afresh,  if 
she  chooses  to  live  without  a  husband ;  but  shall  not  however  marry 
against  the  consent  of  the  lord ;  and  farther,  that  nothing  shall  be 
taken  for  assignment  of  the  widow's  dower,  but  that  she  shall  remain 
in  her  husband's  ^capital  mansion  house  for  forty  days  after  his 
death,  during  which  time  her  dower  shall  be  assigned.  These  forty 
days  are  called  the  widow's  quarantine,  a  term  made  use  of  in  law 
to  signify  the  number  of  forty  days,  whether  applied  to  this  occasion, 
or  any  other.  The  particular  lands,  to  be  held  in  dower,  must  be 
assigned  by  the  heir  of  the  husband,  or  his  guardian ;  not  only  for  the 
sake  of  notoriety,  but  also  to  entitle  the  lord  of  the  fee  to  demand 
his  services  of  the  heir,  in  respect  of  the  lands  so  holden.  For  the 
heir  by  this  entry  becomes  tenant  thereof  to  the  lord,  and  the  widow 
is  immediate  tenant  to  the  heir,  by  a  kind  of  subinfeudation,  or  under- 
tenancy  .completed  by  this  investiture  or  assignment;  which  tenure 
may  still  be  created,  notwithstanding  the  statute  of  Quia  Emptores, 
because  the  heir  parts  not  with  the  fee  simple,  but  only  with  an  es- 
tate for  life.  If  the  heir  or  his  guardian  do  not  assign  her  dower 
within  the  term  of  quarantine,  or  do  assign  it  unfairly,  she  has  her 
remedy  at  law,  and  the  sheriff  is  appointed  to  assign  it.  Or  if  the 
heir  (being  under  age)  or  his  guardian  assign  more  than  she  ought  to 
have,  it  may  be  afterwards  remedied  by  writ  of  admeasurement  of 
do?ver.     If  the  thing  of  which  she  is  endowed  be  divisible,  her  dower 


30  ESTATES  (Ch.  2 

must  be  set  out  by  metes  and  bounds;  but  if  it  be  indivisible,  she 
must  be  endowed  specially;  as  the  third  presentation  to  a  church, 
the  third  toll  dish  of  a  mill,  the  third  part  of  the  profits  of  an  office, 
the  third  sheaf  of  tithe,  and  the  like.    *    *    * 

"4.  How  dower  may  be  barred  or  prevented.  A  widow  may  be 
barred  of  her  dower  *  *  *  by  elopement,  divorce,  being  an  alien, 
the  treason  of  her  husband.  *  *  *  ^  woman  may  also  be  barred 
of  her  dower  by  levying  a  fine,  or  suffering  a  recovery  of  the  lands, 
during  her  coverture.  But  the  most  usual  method  of  barring  dowers 
is  by  jointures.     *    *     * 

"But  then  these  four  requisites  must  be  punctually  observed:  1. 
The  jointure  must  take  effect  immediately  on  the  death  of  the  husband. 
2.  It  must  be  for  her  own  life  at  least,  and  not  pur  autre  vie,  or  for 
any  term  of  years,  or  other  smaller  estate.  3.  It  must  be  made  to 
herself,  and  no  other  in  trust  for  her.  4.  It  must  be  made,  and  so  in 
the  deed  particularly  expressed  to  be,  in  satisfaction  of  her  whole  dow- 
er, and  not  of  any  particular  part  of  it.  If  the  jointure  be  made  to 
her  after  marriage,  she  has  her  election  after  husband's  death,  as  in 
dower  ad  ostium  ecclesise,  and  may  either  accept  it,  or  refuse  it  and 
betake  herself  to  her  dower  at  common  law ;  for  she  was  not  capable 
of  consenting  to  it  during  coverture.  And  if,  by  any  fraud  or  acci- 
dent, a  jointure  made  before  marriage  proves  to  be  on  a  bad  title, 
and  the  jointress  is  evicted,  or  turned  out  of  possession,  she  shall  then 
(by  the  provisions  of  the  same  statute)  have  her  dower  pro  tanto  at 
the  common  law." 

The  tenancy  in  special  tail  with  possibility  of  issue  extinct  is  of 
rare  occurrence.  This  estate  may  arise  in  this  fashion.  A.  grants 
land  to  B.  and  the  heirs  of  his  body  by  his  wife  C.  C.  dies,  not  hav- 
ing had  issue.  It  is  obvious  that  this  estate,  since,  the  special  limita- 
tion, can  no  longer  be  satisfied,  must  necessarily  terminate  with  the 
Hfe  of  B.» 


SECTION  6.— ESTATES  LESS  THAN  FREEHOLD 


Before  entering  into  a  consideration  of  nonfreehold  estates,  at- 
tention should  be  called  to  the  various  meanings  of  the  term  freehold. 
The  term  has  at  least  three  distinct  meanings :  It  may  be  used  to  de- 
scribe the  quantity  of  the  estate,  the  sense  in  which  it  is  being  used 
in  this  present  discussion;  the  term  may  be  used  to  indicate  the 
character  of  the  tenure  upon  which  land  is  held,  thus  contrasting  a 
freehold  tenure  with  a  servile  tenure ;  the  term  may  be  used  to  indi- 
cate possession  of  the  land,  as  distinguished  from  an  interest  that 
is  not  possession,  as  where  one  speaks  of  the  freeholders,  meaning 

»  2  Bl.  op.  cit.  124-126 ;   Co.  Lit.  27b-28b. 


Sec.  6)  ESTATES    LESS   THAN   FREEHOLD  31 

thereby,  the  ones  in  actual  possession  of  the  soil,  with  or  without  a 
freehold  estate,  and  irrespective  of  the  nature  of  the  tenure. 

The  distinction  between  the  estates  that  are  classified  as  freehold 
in  the  sense  in  which  we  are  at  present  using  the  term  and  the  non- 
freehold  estates  is  one  that  is  historical  in  its  nature  rather  than  logical. 
If  we  go  back  to  the  centuries  immediately  following  the  Norman 
Conquest,  we  find  that  at  that  time  the  normal  method  of  holding 
land  was  either  by  estates  for  life^  or  by  larger  estates  of  the  sort 
already  described ;  the  putting  out  of  land  on  leases  for  years,  al- 
though not  unknown,  was  rare.  It  is  possible,  although  not  certain, 
that  at  a  very  early  date  a  lease  for  more  than  forty  years  was  void. 
In  any  event,  the  person  having  a  lease  for  years  was  regarded  as 
having  a  right  that  was  in  the  nature  of  a  contract  right  against  the 
lessor  rather  than  in  the  nature  of  a  property  right  in  the  land. 
If  he  was  ejected  from  the  land  by  the  lessor,  his  remedy  against  the 
lessor  was  more  analogous  to  an  action  of  contract  than  to  an  action 
to  assert  a  property  right  in  the  land.  If  the  eviction  was  by  a  third 
person,  the  only  recourse  of  the  lessee  so  evicted  was  through  his 
lessor,  by  virtue  of  the  obligation  of  his  lessor  to  see  that  he  should 
quietly  enjoy  the  leased  lands,  or,  if  that  could  not  be  done,  to  pro- 
vide him  with  other  lands.  As  a  corollary  of  the  conception  of  the 
j:igllt_Qijthe^_lessee  for  years  as  being  essentially  contractual,  it  was 
treated  as  personalty^  and  not  as  realty,  and  it  therefore  had  the  inci- 
dents of  personal_property ;  that  is,  it  could  be  left  by  will,  which 
was  not  true  of  real  property  until  a  much  later  date,  and  in  the  event 
of  intestacy  the  transmission  of  the  title  would  be  governed  by  the 
laws  relating  to  personal  property. 

During  the  13th  century  the  precarious  position  of  the  lessee  for 
years,  so  far  as  the  nature  of  his  interest  in  the  land  was  concerned, 
was  amehorated.  In  the  year  1235  the  action  of  quare  ejecit  was 
created,  by  which  the  lessee  was  allowed  to  assert  his  possessory  right 
in  the  land  as  against  the  lessor  or  a  purchaser  from  the  lessor  who 
wrongfully  ejected  him,  by  a  judgment  which  restored  him  to  pos- 
session'. By  the  end  of  the  13th  century  the  action  of  trespass  quare 
clausum  fregit  was  definitely  established,  so  that  the  lessee  for  years 
could  recover  damages  against  anyone  interfering  with  his  possession. 
Later  a  specialized  form  of  trespass,  de  ejectione  firmae,  was  devel- 
oped, by  which  the  termor  was  enabled  to  regain  possession  of  the 
land  from  any  person  wrongfully  evicting  him.  This  latter  action 
gradually  became  the  accepted  form  of  action  for  determining  the 
right  to  the  possession  of  the  land,  not  only  in  case  of  tenancies  for 
years,  but  generally. 

Despite  these  developments  in  the  protection  of  the  property  as- 
pect of  the  interest  of  the  lessee  for  years,  with  the  result  that  for  the 
last  500  years  he  has  been  just  as  completely  protected  in  the  pos- 
session and  enjoyment  of  the  land  for  the  duration  of  his  term  as  is 


32  ESTATES  (Ch.  2 

the  tenant  in  fee,  the  interest  is  still  treated  as  personal  property,,  anjd__ 
js  technically  kriown  as  a  chattel  real.     In  some  jurisdictions  the  in- 
congruity of  treating  leases  for  long  terms  of  years  as  chattels  has 
been  recognized  and  done  away  with  by. statutes,  which  provide  that 
leases  for  more  than  a  specified  period  shall  be  treated  as  realty. 

Another  species  of  nonfreehold  estate  is  the  tenancy  at  will,  as 
where  the  land  is  leased  by  A.  to  B.,  to  hold  at  the  will  of  A.  As 
the  name  implies,  the  lease  may  be  terminated  by  A.  at  any  time. 
In  the  event  of  such  termination,  B.  has  a  reasonable  time  to  remove 
his  property  and  is  entitled  to  the  annual  crops  then  growing  on  the 
land.  A  correlative  of  the  right  of  termination  by  the  lessor  is  that 
the  lease  is  also  terminable  at  the  will  of  the  lessee.  It  should  be  no- 
ticed, however, -that  a  lease  which  is  to  terminate  solely  at  the  will_oX 
B.  is  a  tenancy,  not  at  will,  but  for  life. 

For  a  long  time  the  undesirability  of  the  strict  tenancy  at  will,  its 
unfairness  to  both  lessee  and  lessor,  has  been  recognized,  and  from 
the  strict  tenancy  at  will  has  developed  the  tenancy  from  year  tq^ 
year.  This  is  a  tenancy  which  can  be  terminated  by  either  party  only 
upon  the  giving  of  a  half  year's  notice  of  the  desire  to  terminate. 

The  tenancy  at  sufferance,  so  called,  is,  properly  speaking,  not  a 
tenancy  at  all.  The  situation  to  which  the  term  is  applied  is  where 
the  lessee,  whose  estate  has  terminated,  nevertheless  continues  to  re- 
main in  the  possession  of  the  land.  He  cannot  properly  be  classified 
as  a  trespasser,  because  his  entry  was  lawful,  and  to  that  slight  ex- 
tent he  has  the  characteristic  of  a  tenant.  His  retention  of  possession, 
however,  since  it  is  not  with  the  consent  of  the  landlord,  either  ex- 
press or  implied,  is  unlawful,  and  makes  the  application  of  the  term 
"tenant"  to  him  a  misnomer.  The  landlord  may  at  any  time  turn 
him  into  a  tenant  by  treating  him  as  such.^**  , 


SECTION  7 —SEISIN  AND  POSSESSION 

The  distinction  that  the  law  makes  between  freehold  and  nonfree- 
hold estates,  which  has  already  been  referred  to,  is  of  importance  in 
another  regard,  namely,  in  the  distinction  between  seisin  and  posses- 
sion. The  word  "seisin"  is  a  very  old  one  in  the  EngUsh  law.  In 
the  first  one  or  two  centuries  after  the  Conquest,  it  was  used  merely 
to  indicate  possession,  either  of  land  or  of  chattels.  Thus  the  old 
writers  speak  indifferently  of  a  man  being  seised  of  land  or  of  a 
horse.     Gradually,  however,  the  term  "seisin"  began  to  take  on  a 

10  On  estates  less  than  freehold  see  2  Bl.  op.  cit.  cli.  IX;  Lit.  §  58;  2  Poll. 
&  Malt.  op.  cit.  106-117;  Digby,  op.  cit.  176,  177. 


Sec.  7)  SEISIN   AND  POSSESSION  33 

more  technical  meaning,  and  to  be  distinguished  from  the  word  "pos- 
session."^^ 

In  discussing  the  origin  of  the  nonfreehold  estates  it  has  been 
pointed  out  that  the  estate  for  years  was  in  the  beginning  regarded  as 
giving  the  lessee  for  years  only  a  contract  right .  against  his  lessor, 
that  his  occupation  of  the  land  was  merely  in  tlie  nature  of  a  servant 
or  bailee  to  the  lessor,  and  that  for  the  purposes  of  determining  feudal 
relations  and  obligations  the  freehold  lessor  of  the  tenant  for  years 
was  the  only  one  looked  to  by  the  overlord.  Gradually  the  term 
"seisin"  was  applied  only  to  denote  the  possession  of  a  tenant  holding 
a  freehold  estate,  and  the  interest  of  a  tenant  holding  a  nonfreehold 
estate  was  designated  as  possession,  and  this  difference  in  the  terms 
is  now  definitely  established.  Consequently,  if  A.,  owning  in  fee,  leas- 
es to  B.  for  years,  B.  has  the  possession,  but  A,  still  retains  the 
seisin,  even  though,  of  course,  the  de  facto  occupant  of  the  land  is  B. 

The  next  step  in  the  development  of  the  doctrine  of  seisin  may  he 
illustrated  by  the  following  case:  Suppose  A.,  the  owner  in  fee, 
grants  to  B.  for  life.  B.,  now  having  a  frieehold  estate,  has  the 
seisin.  B.,  however,  owes  A.  the  feudal  obligations  of  homage,  fealty, 
and  the  like.  Consequently  the  feudal  lawyers  said  that  A.  also  was 
seised  in  respect  of  these  rights.  They  distinguished  between  the 
two  by  saying  that  B.  was  jeised  in  his  demesne  and  that  A.  was 
seisedjn  jiis^sfiXYices,  This  idea  of  a  seisin  that  was  not  in  fact  ac- 
companied by  an  actual  possession  was  applied  in  another  type  of 
case.  Thus,  if  A.  had  a  right  to  rent  from  B.'s  land,  and  A.'s  estate 
in  the  rent  was  a  freehold  (i.  e.,  in  fee  or  for  life),  A.  was  said  to  be 
seised  of  the  rent  to  which  he  is  thus  entitled ;  and  if  A.  was  deprived 
of  the  rent  by  the  tortious  act  of  B.  or  of  a  third  person,  A.  was 
said  to  be  disseised  of  the  rent,  and  he  could  bring  an  action  to  recover 
the  rent  that  was  almost  identical  with  the  action  that  he  would  bring 
to  recover  the  seisin  of  land  from  which  he  had  been  tortiously  ousted. 
It  is  not  necessary  to  follow  further  these  interesting  questions  of  the 
somewhat  refined  doctrines  of  seisin.  Our  concern  at  present  is  only 
with  the  seisin  of  the  demesne ;  that  is,  with  the  actual  possession  of 
the_land  under  a  freehold  title.  In  connection  with  the  idea  of  seisin 
in  this  most  elementary  sense  one  other  aspect  of  the  doctrine,  of  ex- 
treme importance  in  the  law  of  conveyances  of  interests  in  land  and 
of  the  creation  of  future  estates  in  land  which  are  next  to  be  consid- 
.  ered,  requires  to  be  specifically  stated.  The  purpose  of  the  feudal 
organization  of  society  and  the  whole  theory  upon  which  it  was  con- 
structed were  that  all  land  should  always  be  in  the  possession  of  some 
tenant  having  a  freehold  interest  therein — that  is,  a  seisin — who  should 
be  responsible  for  the  performance  of  the  feudal  obligations.  From 
this  principle  follows  'the  doctrine  that  the  seisin  of  land  can  never 

11  See  1  Maitlaud,  Coll.  Pap.  329-384. 

BiQ.lNT.— 3 


34  ESTATES  (Ch.  2 

be  in  abeyance,  or,  to  state  the  same  thing  in  a  different  form,  that 
some  one  must  always  be  seised  of  any  given  piece  of  land.     There" 
were  a  few  minor  exceptions  to  this  rule,  but  they  are  of  so  slight  im- 
portance as  not  to  require  further  mention.^* 


SECTION  8.— TRANSFER  OF  SEISIN  AND  POSSESSION 


The  most  natural  and  obvious  way  of  transferring  rights  in  any 
tangible  object  is  by  delivering  that  object  to  the  person  to  whom  it 
is  desired  to  transfer  the  rights  in  it.  Indeed,  if  the  rights  are  con- 
ceived of  as  inhering  in  the  object,  this  would  seem  to  be  almost  the 
only  way  by  which  the  rights  could  be  transferred.  One  of  the  oldest 
and  the  most  commonly  used  methods  of  conveying  estates  in  land 
was  based  upon  this  conception.  To  be  sure,  the  land  could  not  be 
physically  picked  up  like  a  book  and  handed  to  the  grantee.  But  the 
nearest  approximation  to  that  would  be  equally  satisfactory,  namely, 
to  put  the  grantee  physically  into  the  possession  of  the  land,  under 
such  circumstances  as  would  make  it  manifest  that  the  intent  was 
thereby  to  transfer  to  him  a  freehold  interest  in  the  land.  This 
was  in  fact,  as  has  already  been  said,  the  most  common  way  of  trans- 
ferring seisin  of  land  under  the  early  English  law.  It  was  technical- 
ly called  livery  of  seisin,  or  feoffment.  It  was  done  by  A.,  the  feoffor, 
taking  B~the  feoffee,  to  the  land  in  question  and  there  handing  him 
a  branch  or  a  piece  of  turf  as  a  symbolical  delivery  of  the  land. 
No  deed  was  required ;  the  physical  act  of  delivery  was  the  operative 
act  to  transfer  the  title.  As  a  matter  of  security  this  always  took 
place  in  the  presence  of  witnesses,  and,,  if  the  transaction  was  of  any 
importance,  a  formal  document  was  ordinarily  drawn  up,  stating  the 
fact  of  the  livery,  and  what  land  was  given,  and  for  what  estates. 
This  document  was  called  the  charter  of  feoffment  From  the  na- 
ture of  livery  of  seisin  it  follows  that  it  was  a  present  act — that  is, 
the  seisin  could  be  passed  out  of  the  feoffor  only  by  an  act  of  present 
delivery ;  an  attempt  to  make  a  livery  of  seisin  to  take  effect  at  some 
future  date  was  a  nullity.  This  doctrine  appears  to  have  been  qual- 
ified somewhat  by  the  so-called  livery  in  law.  Under  this  latter  doc- 
trine the  feoffor  could  take  the  feoffee  to  the  neighborhood  of  the 
land,  point  it  out  to  him,  and  declare  to  him  that  he  thereby  gave  him 
livery.  This  was  effectual  if  the  feoffee  entered  into  the  land  during 
the  life  of  the  feoffor. 

The  method  adopted  for  the  transfer  or  creation  of  nonfreehold 
interests  was  analogous  to  livery  of  seisin.  Of  course,  since  the  ten- 
ant for  years  had  only  a  possession,  and  not  seisin,  the  transaction 

12  On  seisin  and  possession  see  2  Toll.  &  Mait.  op.  pit.  29-40. 


Sec.  8)  TRANSFER   OF   SEISIN    AND   POSSESSION  35 

was  not  technically  a  livery  of  seisin.  But  the  same  fundamental 
idea  of  a  physical  installation  on  the  land  prevailed.  It  was  a  less 
ceremonious  affair,  partly,  doubtless,  for  the  reason  that  the  estate 
created  was  of  not  so  long  a  duration.  There  was  one  important  dif- 
ference between  the  creation  of  a  freehold  estate  and  a  nonfreehold 
estate.  Since  the  nonfreehold  estatewas  in  its  origin  a  contract  rather 
than  a  property  right,  the  doctrine  that  the  estate  could  not  be  cre- 
ated to  begin  in  futuro  had  no  application.  Consequently,  A.  could 
make  a  lease  to  B.  of  Blackacre  to  begin  at  a  specified  future  date. 
On  that  date  it  was  merely  necessary  for  B.  to  entfer  into  possession. 
He  was  not  regarded  as  having  a  leasehold  interest  in  the  interval, 
but  he  was  regarded  as  having  a  right  to  the  lease,  and  this  right  was 
technically  called  an  mteresse  termini. 

If  A.,  the  owner  in  fee,  wished  to  convey  his  land  to  B.  in  fee, 
subject  to  a  contemporaneous  tliree-year  lease  in  favor  of  C,  this  re- 
quired a  combination  of  livery  of  seisin  and  possession ;  the  seisin 
clearly  could  not  be  delivered  directly  to  B.,  for  that  would  mean 
putting  him  into  the  land  to  the  exclusion  of  C.'s  leasehold  interest. 
On  the  other  hand,  C.  could  not  take  a  livery  of  seisin  to  himself, 
since  he  had  a  nonfreehold  interest.  The  creation  of  these  estates 
was  accomplished  by  putting  C.  into  the  possession  of  the  land  and 
delivering  seisin  to  him  for  B.,  who  was  thus  considered  as  having 
been  vested  with  the  seisin  subject  to  C.'s  three-year  possessory  in- 
terest. 

These  methods  of  creating  freehold  and  nonfreehold  estates  con- 
tinued in  England  unchanged  by  statute  until  the  latter  part  of  the 
17th  centuiy.  In  the  Statute  of  Frauds  it  was  provided,  among  other 
things  that  "all  leases,  estates,  interests  of  freehold,  or  terms  of 
years,  or  any  uncertain  interest  of,  in,  to  or  out  of  any  messuages, 
manors,  lands,  tenements  or  hereditaments  made  or  created  by'  livery 
and  seisin  only,  or  by  parol,  and  not  put  in  writing  and  signed  by  the 
parties  so  making  or  creating  the  same,  or  their  agents  thereunto  law- 
fully authorized  by  writing,  shall  have  the  effect  of  leases  or  estates 
at  will  only,  and  shall  not,  either  in  law  or  equity  be  deemed  or  taken 
to  have  any  other  or  greater  force  or  effect ;  *  ♦  ♦  except  never- 
theless all  leases  not  exceeding  the  term  of  three  years  from  the  mak- 
ing thereof."    *    *    *^' 

The  law  as  thus  outlined  continued  substantially  unchanged  until 
the  19th  century,  at  which  time,  after  various  pieces  of  legislation,  it 
was  finally  provided  in  1845  (8  &  9  Vict.  c.  106,  §  2)  that  after  Oc- 
tober 1,  1845,  all  corporeal  tenements  and  hereditaments  should,  as 
regards  the  conveyance  of  the  immediate  freehold  thereof,  be  deemed 
to  lie  in  grant  as  well  as  in  Uvery. 


13  29  Car.  II  (1676)  c.  3,  §§  1,  2. 

On  livery  of  seisiu  and  possession  see  Co.  Lit.  4Sa,  4Sl);    2  Bl.  op.  cit 
RlO-316. 


36  NONPOSSESSOET   INTERESTS   IN    LAND  (Cll.  3 

CHAPTER  III 
NONPOSSESSORY  INTERESTS  IN  LAND 


SECTION  1.— INTRODUCTION 


Up  to  the  present  time,  in  discussing  the  nature  of  the  interests  or 
estates  that  might  be  created  in  land,  the  discussion  has  been  confined 
to  a  consideration  of  the  larger  or  smaller  group  of  rights  that  might 
be  had  by  the  person  in  the  occupation  of  the  land,  whether  this 
occupation  be  technically  described  as  seisin  of  a  freehold  estate  or 
possession  of  a  nonfreehold  estate,  and  whether  the  group  of  rights 
was  the  complete  group  embraced  in  the  term  fee  simple  or  the  com- 
^  paratively  limited  group  of  rights  embraced  in  the  idea  of  a  tenancy  for 

years.     Regardless  of  these  variations,  the  rights  have  always  been 
' "    "'  ■   those  relating  to  the  physical  occupation  of  the  land.     Rights  of  this 
nature  are  technically  classified  under  the  English  law  as  corporeal 

U  English  law,  however,  has  always  recognized  that  there  may  be 

5^-^  rights  in  land  held  by  those  who  are  not  entitled  to  the  actual  occu- 

pation thereof.  These  have  to  a  certain  extent  already  appeared  by 
inference  in  the  matters  that  have  been  considered.  Thus,  where  A. 
grants  to  B.  for  life  or  for  years,  the  seisin  or  possession  of  the  land 
is  in  B.,  but  it  is  clear  that  A.  nevertheless  retains  rights  in  the  land 
which  may  be  of  as  great  or  even  greater  importance  than  those  of  B. 
So,  again,  B.  may  own  land  in  fee  simple,  but  A.  may  have  a  right  to 
rent  from  tlie  land,  or  a  right  of  going  over  the  land.  In  tliese  cases, 
also,  it  is  clear  that  A.  has  some  legal  interests  in  the  land,  although 
they  are  not  of  a  possessory  nature.  Interests  of  this  second  sort  are 
termed  jncorporeal  rights^ 

It  is  worth  while  to  pause  for  a  moment  to  point  out  that  this  ter- 
minology, "corporeal"  and"  "incorporeal"  rights,  is  not  a  scientifically 
sound  one.  The  law  is  never  concerned  with  a  physical  object  as  such. 
The  sole  subject-matter  of  law  is  rights,  and  rights  are  in  all  cases  re- 
lations between  individuals.  The  relation  may  be  purely  between  in- 
dividuals, or  it  may  be  between  individuals  with  respect  to  physical 
objects,  such  as  chattels  or  land.  But  rights  as  such  in  every  case  are 
merely  intellectual  concepts.  It  would  seem  that  the  distinction  be- 
tween corporeal  and  incorporeal  rights  would  be  more  accurately  ex- 
'  pressed  as  a  distinction  between  possessory  and  nonpossessory  rights. 

The  difficulty  has  been  explained  by  Digby  as  follows :  ^ 

1  Op.  cit.  p.  306,  note  2.    Compare  Challis,  op.  cit.  p.  49  et  seq. 


Sec.  1)  INTRODUCTION  37 

"The  division  of  hereditaments  into  corporeal  and  incorporeal, 
though  deeply  rooted  in  our  legal  phraseology,  is  most  unfortunate  and 
misleading.  The  confusion  is  inherited  from  the  Roman  lawyers  (see 
Justinian,  Inst,  ii,  tit.  2),  but  has  been  made  worse  confounded  by  our 
own  authorities.  The  Romans,  misled  by  the  double  sense  of  res,  un- 
happily distinguished  res  corporales  and  res  incorporales ;  the  former 
being  things  'quae  tangi  possunt,  veluti  aurum,  vestis,'  the  latter  mere 
rights,  'quae  in  jure,  consistunt.'  It  is  obvious  that  this  is  mere  con- 
fusion ;  the  two  ideas  not  being  in  pari  materia,  or  capable  of  being 
brought  under  one  class,  or  of  forming  opposite  members  of  a  division. 
Following  the  Romans,  our  lawyers  distinguished  between  heredita- 
ments as  meaning  the  actual  corporeal  land  itself,  and  another  kind  of 
hereditaments  as  not  being  the  land  itself,  but  'the  rights  annexed  to  or 
issuing  out  of  the  land.'  A  moment's  reflection  is  sufficient  to  show 
that  the  distinction  is  untenable.  The  lawyer  has  notliing  whatever  to 
do  with  the  material  corporeal  land,  except  so  far  as  it  is  tlie  subject  of 
rights.  It  is  the  distinction  between  diflferent  classes  of  rights,  and  not 
between  land  on  the  one  side  and  rights  on  the  other,  that  he  is  con- 
cerned with.  In  such  phrases  as  'the  land  descends  to  the  heir,'  what 
is  meant  is,  not  that  something  happens  to  the  land  itself,  but  that  a 
particular  class  of  the  ancestor's  rights  in  relation  to  tlie  land  descends 
to  the  heir.  The  names  'corporeal'  and  'incorporeal'  are  most  unfor- 
tunate, because,  if  by  'corporeal'  is  meant  'related  to  land,'  then  a  large 
class  of  incorporeal  hereditaments  are  also  entitled  to  the  name ;  if  by 
'incorporeal'  is  meant  that  they  are  mere  rights,  then  all  hereditaments 
are  incorporeal,  because  the  lawyer  is  only  concerned  with  different 
classes  of  rights.     *     *     * " 

While  the  justice  of  this  criticism  seems  clear,  the  phrases  in  ques- 
tion are  firmly  established  as  a  part  of  the  English  legal  vocabulary, 
and  so  long  as  their  meaning  is  understood  their  inexactness  is  no  se- 
rious bar  to  their  usefulness. 

Incorporeal  rights  may  be  divided  into  two  different  classes.  There 
are,  first,  those  that  may  ultimately  develop  into  corporeal  or  complete 
possessory  interests.  Such  is  the  nature  of  A.'s  interest  where  he  has 
leased  to  B.  for  a  term  of  years.  During  the  continuance  of  B.'s  lease, 
A.'s  interest  is  incorporeal  or  nonpossessory.  At  tlae  end  of  the  term 
his  interest  will  once  more  become  possessory  The  second  group  of 
nonpossessory  rights  is  those  which  do  not  have  this  characteristic. 
The  right  of  way  or  the  right  to  rent  mentioned  above  are  sufficient 
illustrations  of  this  species  of  incorporeal  rights.  Rights  of  this  second 
sort  are  grouped  by  Blackstone  under  the  head  of  incorporeal  heredita- 
ments, and  will  be  discussed  in  detail  later  on.  For  the  present  we 
shall  confine  ourselves  to  the  first  group  of  incorporeal  rights. 


38  NONPOSSESSORY   INTERESTS  IN   LAND  (Ch.  3 


SECTION  2.— REVERSIONS  AND  REMAINDERS 


If  A.,  owning  land  in  fee  simple,  conveys  to  B.  in  fee  simple,  A. 
thereby  disposes  of  his  entire  interest  in  the  land.  Under  Quia  Emp- 
tores  B.  now  holds  the  land,  not  under  A.,  but  under  A.'s  overlord.  If 
B.  dies,  not  having  disposed  of  the  land  and  leaving  no  heirs,  the  land 
will  escheat  to  the  overlord  by  virtue  of  the  fact  that  the  estate  has 
terminated  and  that  there  is  a  tenure  relation  between  the  overlord  and 
B.  If,  on  the  other  hand.  A.,  being  seised  in  fee,  conveys  to  B.  for 
life,  B.  has  not  acquired  all  of  A.'s  interest  in  the  property.  The  re- 
lation between  A.  and  B.  in  this  case  is  not  affected  by  Quia  Emptores. 
A.  still  owns  the  fee  of  the  land,  subject  to  the  life  estate  which  he 
has  created  in  B.,  and  after  B.'s  death  or  the  other  earlier  termination 
of  the  life  estate,  the  land  will  revert  to  A.,  and  he  will  be  entitled  to 
resume  possession  thereof.  The  same  thing  is  true  if  A.  conveys  land 
to  B.  in  tail,  and  the  entailed  line  runs  out,  or  the  estate  is  otherwise 
terminated;  A.'s  right,  of  course,  being  subject  to  the  possibility  of  be- 
ing barred  by  B.'s  suffering  a  common  recovery.  This  undisposed-of 
interest  that  remains  in  A.  after  the  creation  in  B.  of  what  is  technical- 
ly called  the  particular  estate,  is  the  reversion.  It  is  to  be  noted  that  it 
is  not  created  by  any  act  of  A.,  but  is  merely  the  undisposed  of  resi- 
due of  his  estate.  If  B.'s  estate  is  for  years,  instead  of  for  life  or  in 
fail,  the  same  general  relation  is  created;  but,  since  B.'s  interest  is  now 
a  nonfreehold  interest,  A.'s  interest  is  not  technically  a  reversion, 
although  the  term  is  frequently  used  somewhat  loosely  to  cover  this 
case.  The  same  general  situation  may  exist,  even  though  A.  does  not 
have  a  fee  sintple.  Thus,  a  person  who  has  a  life  estate  may  carve  out 
of  it  a  smaller  estate  in  another  person  for  years,  and  the  interest  thus 
left  in  the  tenant  for  life  may  again  loosely  be  described  as  a  reversion. 

Suppose  A.,  owning  in  fee,  conveys  the  land  to  B.  for  life,  and 
after  B.'s  death  to  go  to  C.  for  life.  Several  questions  may  arise  in 
connection  with  a  conveyance  of  this  sort.  First,  as  to  how  this  con- 
veyance would  be  made.  A.  would  make  a  livery  of  seisin  to  B.  for 
his  life,  which  would  operate  to  put  the  seisin  in  B.,  at  the  same  time 
declaring  by  his  charter  of  feoffment  or  otherwise  the  extent  of  the 
interests  that  B.  and  C.  respectively  were  to  have  in  the  land.  Then, 
after  B.'s  death,  the  seisin  would  pass  to  C.  for  life,  and  after  C.'s  death 
would  revert  to  A.  The  passage  of  the  seisin  from  B.  to  C.  is  not  a 
violation  of  the  doctrine  that  there  can  he  no  livery  of  seisin  to  begin  in 
futuro,  because  of  the  fact  that  the  seisin  is  put  out  of  A.  once  for  all 
for  the  entire  set  of  limitations  at  the  time  of  the  original  livery  to  B. 
Notice  the  dift'erence  between  C.'s  interest  in  this  case,  and  A.'s  rever- 
sionary interest.    C.'s  interest,  like  B.'s  is  created  by  the  act  of  A.,  and 


Sec.  2)  .    REVERSIOxNS   AND   REMAINDERS  39 

js^otjrnerely  an  undisposed-of  residue  of  the  estate  of  the  original 
creator.    C.'s  interest  is  what  is  technically  called  a  remainder. 

The  principle  illustrated  by  the  case  just  given  is  capable  of  many 
applications.  For  example.  A.,  owning  in  fee,  may  enfeoff  B.  for  life, 
remainder  to  C.  for  life,  remainder  to  D.  in  tail.  In  this  case,  as  in 
the  one  just  cited,  C.  and  D.  have  remainders,  and  back  of  them  is  a 
reversion  in  fee  in  A.  It  is  to  be  noticed  that  the  particular  tenant  and 
the  remaindermen  have  no  relation  of  tenure  between  themselves. 
They  all  derive  their  title  from  A.,  and  all  stand  in  a  relation  of  tenure 
to  him.  If  now,  A.  by  a  later  conveyance  transfers  his  reversion  to  X., 
X.  is  not  a  remainderman,  but  an  assignee  of  the  reversion,  and  now  oc- 
cupies the  same  tenure  relation  toward  B.,  C,  and  D.  that  was  formerly 
occupied  by  A.  A.  may  also  execute  this  series  of  limitations :  To  B. 
for  life,  remainder  to  C.  for  life,  remainder  to  D.  in  fee.  This  will 
dispose  of  all  of  A.'s  interest  in  the  land,  since  he  can  give  no  greater 
estate  than  a  fee.  This  is  expressed  in  the  doctrine  that  there  can  be 
no  remainder  after  a  remainder  in  fee.  Another  consequence  of  creat- 
ing the  remainder  in  fee  in  D.  is  that,  since  A.  has  now  disposed  of  all 
his  interest  in  the  land,  there  can  be  no  tenure  between  him  and  B., 
C,  and  D.  It  is  equally  clear,  however,  that  B.,  C,  and  D.  have  no 
tenure  relation  between  themselves.  Quia  Emptores  applies  in  this 
case,  with  the  result  that  all  three  of  them  hold  under  A.'s  overlord. 

In  all  the  cases  hitherto  discussed  the  estate  of  the  remainderman 
was  of  such  a  sort  that,  whenever  the  preceding  estate  terminated,  the 
estate  in  remainder  was  ready  to  take  up  the  seisin.  It  is  true,  of 
course,  that  in  the  Hmitation  last  given  C,  the  tenant  for  life,  may  die 
before  B.  dies.  ■  If  that  happens,  it  merely  means  that  on  the  death  of 
B.  the  seisin  will  pass  to  D.  The  fact  that  D.  himself  may  have  died 
before  B.  is  immaterial,  since  his  estate  is  one  of  inheritance,  and  his 
right  to  the  seisin  will  pass  to  his  heir.  We  now,  however,  have  to 
consider  a  different  species  of  remainder.  Suppose  that  A.,  being 
seised  in  fee,  enfeoffs  B.  for  life,  remainder  to  C.  for  life  if  C.  shall 
pay  A.  £100.  The  feudal  rule  requiring  that  the  seisin  should  always 
be  vested  in  some  definite  person  is  satisfied,  at  least  for  the  time  being, 
since  B.  has  a  freehold  estate.  This  case,  however,  differs  from  those 
hitherto  considered,  in  that  in  the  present  case  it  is  impossible,  at  the 
time  of  the  creation  of  these  limitations,  to  say  where  the  seisin  will 
go  upon  B.'s  death.  It  may  or  may  not  go  to  C,  depending  upon 
whether  he  has  or  has  not  paid  the  ilOO.  The  remainder  to  C.  in  this 
case  is  what  is  technically  called  a  contingent  remainder,  as  contrasted 
with  the  vested  remainders  in  the  limitations  hitherto  given.  Under 
the  older  law  contingent  remainders  were  not  recognized.  By  the  15th 
century,  however,  the  possibility  of  creating  them,  subject  to  certain 
limitations  now  to  be  discussed,  was  definitely  established.  If,  there- 
fore, in  the  example  given,  C.  shall  pay  the  ilOO.  at  or  before  the  ter- 
mination of  B.'s  life  estate,  the  seisin  will,  upon  the  termination  of  such 


40  NONPOSSESSOEY   INTERESTS    IN   LAND  (Ch.  3 

life  estate,  pass  to  C.  If  C.  has  not  paid,  the  seisin  will  revert  to  A.  or 
to  A.'s  heirs.  The  general  principle  is  that  a  contingent  remainder  is 
good,  if  it  becomes  vested  at  or  before  tlie  termination  of  the  precJcF" 
"ing  estate.  If,  in  the  illustration  given,  the  contingent  remainder  in 
TThad  been  followed  by  a  remainder  to  D.,  and  C.  had  not  satisfied  the 
contingency  at  or  before  the  termination  of  B.'s  estate,  the  seisin 
would  then  have  passed  to  the  next  vested  estate  in  remainder,  that  is, 
D.'s,  and  C.'s  contingent  remainder  would  have  been  destroyed.  The 
same  result  follows  if,  through  the  nonperformance  of  the  contingency, 
the  seisin  reverts  to  A.  , 

There  are  various  kinds  of  contingent  remainders.  Mr.  Fearne, 
in  his  work  on  Contingent  Remainders,^  divides  them  as  follows : 

"1.  Where  the  remainder  depends  entirely  on  a  contingent  determi- 
nation of  the  preceding  estate  itself — 

"As  if  A.  makes  a  feoffment  to  the  use  of  B.  till  C.  returns  from 
Rome,  and  after  such  return  of  C.  then  to  remain  over  in  fee ;  here  the 
particular  estate  is  limited  to  determine  on  the  return  of  C,  and  only 
on  that  determination  of  it  is  the  remainder  to  take  effect;  but  that  is 
an  event  which  possibly  may  never  happen,  and  therefore  the  remain- 
der, which  depends  entirely  upon  the  ^determination  of  the  preceding 
estate  by  it,  is  dubious  and  contingent.  So  where  a  fine  was  levied  to 
the  use  of  A.  and  the  heirs  male  of  his  body,  until  he,  the  said  A., 
should  do  such  a  thing,  and  after  such  a  thing  done  by  the  said  A.  to 
the  use  of  B.  in  tail:  A.  died  without  issue,  and  without  performing 
the  condition;  and  it  was  adjudged  the  remainder  was  contingent,  and 
never  took  place. 

"2.  Where  some  uncertain  event,  unconnected  with  and  collateral 
to  the  determination  of  the  preceding  estate,  is,  by  the  nature  of  the 
limitation,  to  precede  the  remainder-rr 

"As  if  a  lease  be  made  to  A.  for  life,  remainder  to  B.  for  life,  and  if 
B.  die  before  A.  to  C.  for  life ;  here  the  event  of  B.'s  dying  before  A. 
does  not  in  the  least  affect  the  determination  of  the  particular  estate, 
nevertheless  it  must  precede  and  give  effect  to  C.'s  remainder ;  but  such 
event  is  dubious,  it  may  or  may  not  happen,  and  the  remainder  depend- 
ing on  it  is  therefore  contingent.  So  if  lands  be  given  to  A.  in  tail,  and, 
if  B.  come  to  Westminster  Hall  such  a  day,  to  B.  in  fee ;  here  B.'s  com- 
ing to  Westminster  Hall  has  no  connection  with  the  determination  of 
A.'s  estate;  but  as  it  is  an  uncertain  event,  and  the  remainder  to  B.  is 
not  to  take  place  unless  it  should  happen,  such  remainder  is  there- 
fore a  contingent  remainder. 

"3.  Where  a  remainder  is  limited  to  take  effect  upon  an  event, 
which,  though  it  certainly  must  happen  some  time  or  other  yet  may  not 
happen  till  after  the  determination  of  the  particular  estate — 

"As  if  a  lease  be  made  to  J.  S.  for  life,  and  after  the  death  of  J.  D. 
the  lands  to  remain  to  another  in  fee ;  now  it  is  certain  that  J.  D.  must 

2  10th  Ed.,  pp.  8  to  9. 


Sec.  2)  REVERSIONS    AND   REMAINDERS  41 

die  some  time  or  other,  but  his  death  may  not  happen  till  after  the  de- 
termination of  the  particular  estate  by  the  death  of  J.  S.,  and  therefore 
such  remainder  is  contingent.  So  in  case  of  a  lease  for  life  to  A., 
and  after  the  death  of  A.  and  M.,  the  remainder  to  B.  in  fee,  this  is 
a  contingent  remainder;  for  the  particular  estate  being  only  for  the 
life  of  A.,  and  the  remainder  not  to  commence  till  after  the  death  of 
A.  and  M.,  if  A.  die  before  M.,  the  particular  estate  will  end  before 
the  remainder  can  commence;  which  is  very  possible,  and  therefore 
such  remainder  is  contingent.  So  if  a  feoffment  be  to  the  use  of  A. 
for  21  years  if  he  shall  so  long  live,  and  after  his  death  to  the  use  of  B. 
in  fee ;  here  A.  may  survive  the  21  years ;  if  he  should,  the  particular 
estate  would  determine  before  the  remainder  could  commence,  and 
therefore  such  remainder  is  contingent,  and,  being  so,  is  void,  for  want 
of  a  preceding  freehold  to  support  it,  as  will  appear  hereafter. 

"4.  Where  a  remainder  is  limited  to  a  person  not  ascertained,  or  not 
in  being  at  the  time  when  such  limitation  is  made — 

"As  if  a  lease  be  made  to  one  for  life,  remainder  to  the  right  heirs 
of  J.  S. ;  now  there  can  be  no  such  person  as  the  right  heir  of  J.  S.,  un- 
til the  death  of  J.  S.  (for  nemo  est  hseres  viventis),  which  may  not  bap- 
pen  till  after  the  determination  of  the  particular  estate  by  the  death 
of  tenant  for  life,  therefore  such  remainder  is  contingent.  So  where 
a  remainder  is  limited  to  the  first  son  of  B.,  who  has  no  son  then  born  ; 
here  B,  may  never  have  a  son,  or,  if  he  should,  the  particular  estate 
may  determine  before  the  birth  of  such  son,  therefore  this  estate  is 
contingent.  So  if  an  estate  be  limited  to  two  for  life,  remainder  to  the 
survivor  of  them  in  fee,  the  remainder  is  contingent,  for  it  is  uncer- 
tain who  will  be  the  survivor." 

These  illustrations  are  given  merely  as  indicating  the  various  pos- 
sibilities in  the  creation  of  these  estates. 

A.,  being  seised  in  fee,  conveys  to  B.,  for  ten  years,  remainder  to 
C.  in  fee  if  C.  pays  A.  ilOO.  This  remainder  is  intrinsically  bad.  The 
seisin  cannot  be  in  B.,  for  the  reason  that  he  has  a  nonfreehold  estate. 
It  cannot  be  in  C,  because  he  is  not  yet  entitled  to  it.  To  say  that  when 
C.  pays  the  ilOO.  the  seisin  then  passes  to  him  is  to  violate  the  com- 
mon-law doctrine  that  there  cannot  be  a  livery  of  seisin  operating  in 
futuro.  The  principle  exemplified  in  this  case  is  embodied  in  the  doc- 
mne  that  a  contingent  remainder  is  bad  unless  supported  by  a  preced- 
ing vested  estate  of  freehold. 

A.,  being  seised  in  fee,  enfeoffs  B.  for  life  and  one  year  after  B.'s 
death  to  C.  in  fee.  This  limitation  to  C.  is  also  intrinsically  bad.  Up- 
on the  death  of  B.,  the  seisin  cannot  go  to  C,  for  such  is  not  the  lim- 
itation. It  must  therefore  revert  to  A.,  and,  once  being  back  in  A.,  it 
cannot  thereafter  be  taken  out  of  him,  except  by  a  new  conveyance, 
for  the  reason  already  stated. 

It  has  already  been  mentioned  that  it  was  necessary  that  a  contin- 
gent remainder  should  vest  at  or  before  the  termination  of  the  pre- 


42  NONPOSSESSORY  INTERESTS  IN  LAND  (Ch.  3 

ceding  estate,  and  that  if  it  did  not  do  so  by  that  time  it  was  irretriev- 
ably lost.  Thus,  if  A.  was  a  tenant  for  life,  with  a  contingent  remain- 
der to  B.  for  life,  it  would  be  sufficient  if  B.  satisfied  the  contingency  at 
or  before  A.'s  death.  At  common  law  it  was  possible  that  A.'s  estate 
might  terminate  before  the  death  of  A.,  if  A.  engaged  in  a  course  of 
action  that  forfeited  his  estate,  as  for  example,  enfeoffing  X.  of  the  land 
in  fee.  Since  this  was  in  violation  of  A.'s  feudal  obligations  with  re- 
spect to  the  land,  it  resulted  in  destroying  whatever  estate  he  had,  with 
the  consequence  that  the  next  estate  must  then  take  the  seisin  and  be 
ready  to  assume  the  burdens  of  feudal  tenure.  If  B.'s  estate  had  not  at 
that  time  become  vested  by  the  performance  of  the  contingency,  it 
would  drop  out,  the  seisin  would  pass  to  the  next  vested  estate  of 
freehold,  and  B.'s  estate  be  destroyed.  Contingent  remainders  might 
also  be  lost  in  ways  other  than  by  the  destruction  of  the  particular 
estate.    These  other  methods  will  be  considered  in  a  later  connection. 

This  easy  destructibility  of  contingent  remainders  led  to  a  device  to 
preserve  them  for  the  benefit  of  the  contingent  remainderman,  by  pro- 
viding that  after  the  termination  of  the  tenancy  for  life  for  any  reason 
the  seisin  should  go  to  certain  specified  persons,  their  heirs  and  assigns, 
as  trustees  for  the  life  of  the  tenant  for  life  and  for  his  benefit.  These 
persons,  being  specified  and  their  estate  being  therefore  ready  to  come 
into  possession  on  any  termination  of  the  particular  estate,  l2ad_a  vest- 
ed remainder.  Consequently,  if  the  tenant  for  life  forfeited  or  other- 
wise terminated  his  estate,  the  vested  remainder  in  the  trustees  for 
the  life  of  the  tenant  for  life  would  then  come  in.  By  thus  interpos- 
ing another  vested  estate  until  the  termination  of  the  natural  life  of 
the  tenant  for  life,  a  further  chance  was  given  for  the  contingent  re- 
mainderman either  to  come  into  being  or  to  satisfy  the  contingency 
upon  which  his  estate  depended,  if  he  was  already  in  being.  Of  course 
it  would  have  been  possible  for  the  trustees,  acting  in  collusion  with 
the  next  vested  remainderman,  to  destroy  the  contingent  remainder; 
but  they  were  prevented  from  doing  this  by  the  orders  of  the  Chan- 
cellor. By  later  legislation  contingent  remainders  were  made  indestruct- 
ible, and  consequently  tlie  need  for  trustees  to  preserve  contingent 
remainders  was  done  away  with.' 

3  On  reversions  and  remainders  see  2  Bl.  op.  cit.  163-176 ;  Challis,  op.  cit. 
72-85,  119-151 ;  Digbv,  op.  cit.  262-275 ;  Leake,  op.  cit.  226-246 ;  Williams,  op. 
cit.  323-365. 


Sec.  3)       CONDITIONAL  LIMITATIONS  AND   RIGHTS   OF   ENTBT  43 


SECTION  3.— CONDITIONAL  LIMITATIONS  AND  RIGHTS 

OF  ENTRY 


The  next  type  of  nonpossessory  interest  in  land  that  requires  con- 
sideration may  be  illustrated  by  the  two  following  limitations :  A.,  be- 
ing seised  in  fee,  enfeoffs  B.  to  hold  for  B.'s  life  or  until  C.  pays  A. 
ilOO.,  and  thereupon  to  C.  in  fee;  A.,  being  seised  in  fee,  enfeoffs  B. 
for  life,  subject  to  the  condition  that,  if  C.  pays  A.  ilOO.,  then  C.  may 
enter  and  terminate  the  estate  of  B.  The  limitation  to  C.  contained  in 
the  first  illustration  is  good.  B.  has  a  life  estate ;  that  is,  an  estate  of 
uncertain  duration,  that  may  terminate  in  one  of  two  ways,  either  by 
his  death,  or  by  the  payment  of  the  £100.  The  proviso  for  the  termina- 
tion of  his  estate  in  favor  of  C.  by  the  payment  of  the  ilOO.  is  a  con- 
ditional limitation,  and  C.'s  estate  is  an  ordinary  remainder.  The  lim- 
itation given  to  C.  in  the  second  illustration  is  bad.  It  is  not  couched 
as  a  conditional  limitation  upon  B.'s  estate;  that  is,  B.'s  estate  does  not 
automatically  come  to  an  end  upon  the  payment  of  the  ilOO.  What 
is  attempted  is  to  give  C.  the  power  to  terminate  B.'s  estate  after  C.  has 
paid  the  £100  to  A.  This  power  on  C.'s  part  is  what  is  technically 
known  as  a_ri^ht  of  entry.  A  right  of  entry  was  not  regarded  under 
the  common  law  as  being  in  the  nature  of  an  estate  in  the  land.  It  was 
regarded  as  a  personal  right  or  power,  and  in  the  type  of  right  of  entry 
that  is  now  being  considered  it  could  exist  only  in  the  person  creating 
the  estate  with  respect  to  which  the  power  was  created,  or  in  his 
heirs.  It  could  not  be  assigned,  even  as  a  part  of  the  reversion  back 
of  the  particular  estate  which  was  made  subject  to  the  right  of  entry. 
In  general,  the  question  as  to  whether  a  given  phrase  is  to  be  regarded 
as  a  conditional  limitation  or  as  a  condition  with  power  of  entry  is  one 
of  the  intent  of  the  parties  rather  than  of  the  exact  language  used ;  the 
general  tendency  is  to  treat  it,  if  possible,  as  a  conditional  limitation. 
The  doctrine  of  the  common  law  with  respect  to  conditions  was  changed 
as  regards  .certain  classes  of  leases  in  the  tim€  of  Henry  VIII  (32 
Hen.  VIII,  c.  34),  and  it  has  been  changed  by  statute  in  similar  cases 
in  all  of  the  states  in  this  country  as  well.* 

*  On  conditional  limitations  and  rights  of  entry  see  Co.  Lit.  214a-21.5b ; 
Challis,  op.  cit.  219,  253;  Lealfe,  op.  cit.  161-175. 


44  NO>:rossESSOEY  interests  in  land  (Ch.  3 

SECTION  4.— INCORPOREAL  HEREDITAMENTS 


We  pass,  now,  to  the  other  group  of  incorporeal  interests.  Black- 
stone  enumerates  ten  so-called  incorporeal  hereditaments,  namely,  ad- 
vowsons,  tithes,  commons,  ways,  offices,  dignities,  franchises,  corodies, 
annuities,  and  rents.  Of  tjiese'the  only  ones  that  possess  importance 
for  our  present  purposes  are  commons,  ways,  and  rents.  All  three 
of  these  found  their  origin  in  the  feudal  system,  and  the  first  two 
probably  go  back  to  the  ante-Conquest  days,  when  the  manor  was  in 
its  formative  stage.  Common  was  the  right  of  pasturage  that  the  ten- 
ants of  the  manor  had  upon  the  waste  lands  of  the  manor,  and  is  one 
species  of  the  broader  group  of  rights  known  as  profits.  A  profit  may^ 
be  defined  as  the  right  which  one  person  has  to  take  some  substance 
from  the  soil  of  another  without  being  entitled  to  the  possession  of 
the  soil  from  which  the  substance  is  taken.  A_way  is  one  species  of  the 
broader  group  of  rights  known  as  easements,  which  may  be  defined 
as  the  right  to  make  a  limited  specified  use  of  the  land  of  another 
without  taking  any  of  the  substance  therefrom  or  having  [>ossession 
thereof.  Rent  was  the  return  reserved  by  the  grantor  of  land  from  the 
grantee  thereof.® 


SECTION  5.— CONVEYANCE  OF  INCORPOREAL  INTEREST 


If  A.  has  the  reversion  of  a  piece  of  land  in  fee,  subject  to  an  es- 
tate in  B.  for  years  or  for  hfe  or  in  tail,  and  A.  wishes  to  convey  his 
reversionary  interest  to  C,  how  is  this  to  be  done  ?  Clearly  under  these 
circumstances  A.  cannot  give  C.  livery  of  seisin.  To  attempt  to  do  so 
would  result  in  an  illegal  disturbance  of  B/s  interest  in  the  land. 
Whether  B.'s  interest  be  for  life  or  in  tail,  which  would  give  him  a 
seisin,  or  whether  his  interest  be  for  years,  which  would  give  him 
technically  only  a  possession,  any  attempt  by  A.  to  take  C.  to  the  land 
and  go  through  the  formality  of  livery  would  be  an  ouster  of  B.  and 
a  disturbance  of  his  legal  rights.  So,  also,  if  B.  is  tenant  for  life 
and  C.  has  a  remainder  for  life,  which  he  wishes  to  convey  to  D.,  it 
is  equally  impossible  for  C.  to  give  livery  of  seisin.  The  same  difficulty 
arises  if  A.,  the  owner  of  land,  wishes  to  create  in  B.  an  easement 
or  a  profit  or  a  right  to  a  rent.  Thes?  all,  being  incorporeal — that  is 
to  say,  nonpossessory — interests,  cannot  be  created  by  a  method  the 
essence  of  which  is  a  dealing  witli  the  physical  possession  of  the  land. 

6  On  incorporeal  hereditaments  see  2  Bl.  op.  ciL  ch.  Ill ;  Digby,  op.  cit 
181-210. 


Sec.  5)  CONVKYANCE   OF   INCORPOREAL   INTEREST  45 

It  is  in  this  type  of  case  that  we  encounter  the  second  main  method 
of  conveyancing  known  to  the  common  law ;  that  is  to  say,  hy  deed, 
a  formal  instrument  sealed  and  delivered  by  the  grantor  to  the  gran- 
tee, describing  the  interest  to  be  conveyed  to  the  grantee.  Conveyance 
by  deed  was  used  in  all  cases  at  common  law  where  conveyance  by  liv- 
ery was  impossible,  owing  to  the  nature  of  the  right  to  be  conveyed. 
Hence  the  common-law  adage  that  corporeal  interests  lie  in  livery  and 
incorporeal  interests  lie  in  grant. 

In  the  case  where  the  incorporeal  interest  to  be  conveyed  was  a 
reversion  or  remainder,  another  essential  step  to  complete  the  con- 
veyance was  the  assent  of  the  particular  tenant  to  the  transfer  of  the 
reversionary  or  remainder  interest  to  the  grantee.  This  was  known  as 
the  attornment  by  the  tenant.  It  consisted  of  a  formal  acknowledg- 
ment by  him  of  the  transfer,  and  a  recognition  that  the  right  so  trans- 
ferred was  vested  in  the  grantee.  The  reason  for  requiring  the  attorn- 
ment of  the  tenant  that  is  ordinarily  given  is  that  in  the  feudal  sys- 
tem the  relation  of  lord  and  tenant  was  so  personal  that  it  was  regarded 
as  unfair  to  the  tenant  that  his  lord  should  be  changed,  save  by  his  con- 
sent. That  this  cannot  be  the  sole  reason  for  the  requirement  is  mani- 
fest from  the  fact  that  attornment  was  also  necessary  in  the  case  of 
the  transfer  of  a  remainder,  although  in  that  situation  there  is,  of 
course,  no  relation  of  tenure  between  the  particular  tenant  and  the 
remainderman.  It  has  been  suggested  that  another  explanation  for  the 
doctrine  of  attornment  is  that  the  incorporeal  interest  transferred  was 
regarded  as  having  one  end  localized  in  the  soil,  and  that  consequently 
this  transfer  could  not  be  made  except,  as  the  tenant  permitted  it  by 
his  formal  consent.^ 

This  doctrine  of  attornment  on  the  part  of  the  tenant  vvas  done  away 
with  by  statute  in  the  time  of  Anne.    The  statute  provides  as  follows : 

St.  4  Anne  (1705)  c.  16,  §  9:  "And  be  it  further  enacted  by  the  au- 
thority aforesaid,  That  from  and  after  the  said  first  day  of  Trinity 
term  (1706),  all  grants  or  conveyances  thereafter  to  be  made,  by  fine 
or  otherwise,  of  any  manors  or  rents,  or  of  the  reversion  or  remainder 
of  any  messuages  or  lands,  shall  be  good  and  efl^ectual,  to  all  intents 
and  purposes,  without  any  attornment  of  the  tenants  of  any  such 
manors,  or  of  the  land  out  of  which  such  rent  shall  be  issuing,  or  of  the 
particular  tenants  upon  whose  particular  estates  any  such  reversions 
or  remainders  shall  and  may  be  expectant  or  depending,  as  if  their  at- 
tornment had  been  had  and  made." 

This  same  statute  has  in  substance  been  re-enacted  in  many  states 
in  this  country.  In  those  states  where  it  has  not  been  formally  re-en- 
acted, the  courts  would  doubtless  hold  that  the  idea  of  attornment 
was  so  foreign  to  present  policy  as  to  have  no  placq  ii^py  law/ 

e  See  1  Maitland,  Coll.   Pap.  374-379. 

T  On  grant  and  attornment  see  2  Bl.  op.  cit.  317;  Co.  Lit.  309a-310a,  315l>- 
316b ;    Digby,  op.  clt.  260-262 ;    Leake,  op.  cit.  37-38. 


46  NONPOSSESSOEY   INTERESTS  IN  LAND  (Ch.  3 

SECTION  6.— OTHER  SPECIES  OF  CONVEYANCES 


The  more  important  methods  of  conveyancing,  viz.,  the  feoffment 
for  freehold,  and  the  lease  for  nonfreehold,  possessory  interests,  and 
the  deed  for  nonpossessory  interests,  have  already  been  discussed.  In 
addition  to  these  conveyances,  there  are  certain  others  that  require 
mention. 

The  release  is  a  special  form  of  conveyance  by  deed.  It  could  be 
given  only  by  a  person  out  of  possession  of  land  to  a  person  in  posses- 
sion.    There  were  four  kinds  of  releases : 

1.  Per  mitter  le  droit.  This  was  the  form  of  release  that  was  ex- 
ecuted by  the  disseisee  of  lands  to  the  one  who  had  disseised  him,  the 
result  being  to  pass  to  the  disseisor  in  possession  the  rights  that  the 
disseisee  still  retained. 

2.  Per  mitter  Testate.  This  was  the  form  of  release  that  was  execut- 
ed by  one  joint  tenant  or  coparcener  to  another. 

3.  Per  enlarger  Testate.  This  release  was  the  form  used  by  a  re- 
versioner or  remainderman  in  conveying  his  interest  to  the  tenant  of  a 
particular  estate. 

4.  Per  extinguishment.  This  was  the  form  of  release  used  by  the 
holder  of  an  incorporeal  hereditament,  such  as  a  rent'  or  easement,  to 
release  to  the  owner  of  the  land  the  right  to  the  rent  or  the  ease- 
ment. 

A  release  per  enlarger,  in  connection  with  a  lease  of  the  land  in 
question,  was  sometimes  used  as  a  method  of  conveying  in  fee  simple, 
instead  of  a  feoffment.  Thus,  A.  would  execute  a  lease  of  the  premises 
to  B.  fpr  one  year,  and  B.  would  go  into  possession,  whereupon  A. 
would  execute  to  him  a  release,  which  would  operate,  of  course,  to 
vest  a  fee  simple  in  B.^ 

Surrender  is  just  the  reverse  of  release;  the  surrender  being  a  giving 
up  by  the  holder  of  the  estate  in  possession  to  the  next  vested  estate 
in  reversion  or  remainder.  No  livery  of  seisin  or  deed  was  necessary. 
The  mere  expression  of  the  giving  up  by  the  particular  tenant  to  the  re- 
mainderman or  the  reversioner  and  the  acceptance  by  the  latter  was 
sufficient  to  operate  as  a  surrender  of  the  particular  estate.  There 
could  not  be  a  technical  surrender,  except  where  the  legally  smaller  es- 
tate was  surrendered  to  the  larger  estate.  Thus  a  tenant  for  life  in 
possession  could  not  technically  surrender  to  a  remainderman  having 
an  estate  for  years,  irrespective  of  the  length  of  the  term.  On  the 
other  hand,  a  tenant  for  100  years  in  possession  could  surrender  to  a 
remainderman  for  Hfe,  and  A.,  a  tenant  for  life  in  possession,  could 

8  On  release  see  2  Bl.  op.  cit.  324;  Littleton,  §§  444-447,  449^51,  459-4(31, 
46;>-471,  479-480. 


Sec.  6)  OTHER   SPECIES    OF   CONVEYANCES  47 

surrender  to  B.,  a  remainderman  for  life,. for  the  reason  that  A.'s  estate 
was  from  B.'s  point  of  view  an  estate  d'autre  vie,  and  an  estate  d'autre 
vie  was  an  estate  legally  smaller  than  an  estate  for  one's  own  life. 

Closely  associated  with  the  doctrine  of  surrender  is  the  doctrine  of 
jnerger.  In  the  event  of  a  surrender  by  the  particular  tenant  to  the  re- 
mainderman or  reversioner,  the  surrenderee  did  not  thereupon  have  two 
estates.  The  smaller,  or  surrendered,  estate  was  held  to  be  lost  or 
merged  in  the  larger  estate  of  the  surrenderee.  This  result  was  due  to 
the  common-law  rule  that  it  was  legally  impossible  for  a  man,  except  in 
a  few  cases,  to  have  at  the  same  time  in  himself  two  separate  and  imme- 
diate estates.  If  between  the  estate  of  the  tenant  for  life  in  possession 
and  the  estate  of  the  remainderman  or  reversioner  there  was  an  out- 
standing vested  estate  in  another  remainderman,  then  there  could  tech- 
nically be  no  surrender.  The  conveyance  would  have  to  be  by  livery  or 
other  corresponding  methods,  and  for  the  same  reason  there  would  be 
no  merger  of  estates  in  the  one  to  whom  the  conveyance  was  made. 

If  the  outstanding  interest  was  merely  a  contingent  remainder,  this 
would  not  be  regarded  as  sufficient  to  prevent  the  doctrine  of  merger 
from  applying,  and  the  necessary  result  would  be  that  the  contingent 
remainder  would  be  destroyed.  This  destruction  of  a  contingent  re- 
mainder followed  in  any  case  where  the  particular  estate  was  convey- 
ed to  the  person  who  had  the  next  vested  estate  in  remainder,  whether 
by  surrender  or  release  or  otherwise.  This  rule  of  t*he  common  law  has 
now  been  largely  changed  by  statute,  and  the  contingent  remainder 
preserved  from  destruction  by  this  method.® 

Mention  has  already  been  made  of  the  fictitious  lawsuits  known 
as  the  fine  and  the  common  recovery  in  discussing  the  barring  of  estates 
tail.  These  two  fictitious  lawsuits  were  also  used  as  regular  methods 
of  conveying  interests  in  land  during  the  older  period  of  English  law. 
They  had  the  advantage  of  publicity,  and  of  establishing  a  permanent 
record  as  to  the  state  of  the  title. 

Another  common-law  method  of  conveyance  of  limited  use  was  the 
method  of  exchange.  This  could  be  utilized  only  where  the  estates  to 
be  exchanged  were  equal.  Neither  delivery  nor  deed  was  required.  It 
was  enough  if  the  possession  of  the  exchanged  pieces  was  taken  during 
the  life  of  the  two  persons  making  the  exchange.  By  the  statute  of 
frauds,  if  the  estates  so  exchanged  were  of  more  than  three  years'  dura- 
tion, the  exchange  must  be  in  writing. 

The  principles  of  the  feudal  law  did  not  admit  the  power  of  the  hold- 
er of  land  to  transmit  it  by  will.  As  has  already  been  pointed  out,  the 
first  tendency  was  to  cause  the  land  to  go  to  the  heir  of  the  original 
donee  under  the  terms  of  the  original  gift  from  the  overlord.  When  it 
became  established  that  the  first  grantee  took  a  fee  simple,  the  land 
would  nevertheless  go  to  the  heir,  unless  disposed  of  by  the  ancestor  in 

»  On  surrender  and  merger  see  2  Bl.  op.  cit.  326 ;  Co.  Lit.  337b ;  Challls, 
op.  cit.  136;   Fearne,  Couting.  Reins.  340-343;    Leakp.  op.  cit.  238.  239. 


48  NONPOSSESSORY   INTERESTS   IN   LAND  (Ch.  3 

his  lifetime.    The  right  to  leave  by  will  existed  in  the  case  of  gavel- 
kind land  and  in  some  of  the  English  boroughs. 

This  common-law  rule  was  changed  by  statute  in  the  reign  of  Henry 
VIII.  By  32  Hen.  VIII,  chs.  1  and  35,  and  35  Hen.  VIII,  ch.  5,  the 
power  was  given  to  devise  all  lands  held  in  socage  tenure  and  two- 
thirds  of  the  land  held  in  knight  service.  When  by  the  12  Car.  II,  ch. 
24,  all  land  was  declared  to  be  held  in  socage,  it  thereby  automatically 
became  devisable. 


-^2^/t^r 


InX- 


-..y^ 


/virt.-'V'l-^  , 


r      •^' -'■^M^'OL''^ 


..,,J  A 


Ch,  4)  JOINT   OWNERSHIP  49 

CHAPTER  IV 
JOINT  OWNERSHIP 


Up  to  the  present,  as  a  matter  of  convenience,  questions  of  the  es- 
tates in  land  have  been  considered  as  though  the  estates  were  owned  by 
a  single  individual.  Such,  however,  was  not  necessarily  the  case  under 
English  law.  All  rights,  whether  corporeal  or  incorporeal,  might  be 
owned  either  by  a  single  person  or  by  two  or  more  persons.  There 
were  several  species  of  ownership  of  this  nature.  They  are  described 
by  Blackstone  as  follows :  ^ 

"An  estate  in  joint  tenancy  is  where  lands  or  tenements  are  granted 
to  two  or  more  persons  to  hold  in  fee  simple,  fee  tail,  for  life^  for 
years,  or  at  will.  In  consequence  of  such  grants  an  estate  is  called 
an  estate  in  joint  tenancy,  and  sometimes  an  estate  in  jointure,  which 
word  as  well  as  the  other  signifies  an  union  or  conjunction  of  inter- 
est; though  in  common  speech  the  term  jointure  is  now  usually  con- 
fined to  that  joint  estate,  which  by  virtue  of  Statute  27  Hen.  VIII, 
c.  10,  is  frequently  vested  in  the  husband  and  wife  before  marriage, 
as  a  full  satisfaction  and  bar  of  the  woman's  dower. 

"In  unfolding  this  title,  and  the  two  remaining  ones,  in  the  present 
chapter,  we  will  first  inquire  how  these  estates  may  be  created;  next, 
their  properties  and  respective  incidents ;  and  lastly,  how  they  may 
be  severed  or  destroyed. 

"1.  The  creation  of  an  estate  in  joint  tenancy  depends  on  the  word- 
ing of  the  deed  or  devise,  by  which  the  tenants  claim  title;  for  this 
estate  can  only  arise  by  purchase  or  grant,  that  is,  by  act  of  the  par- 
ties, and  never  by  the  mere  act  of  law.  Now,  if  an  estate  be  given 
to  a  plurality  of  persons,  without  adding  any  restrictive,  exclusive,  or 
explanatory  words,  as  if  an  estate  be  granted  to  A.  and  B.  and  their 
heirs,  this  makes  them  immediately  joint  tenants  in  fee  of  the  lands. 
For  the  law  interprets  the  grant  so  as  to  make  all  parts  of  it  take 
efifect,  which  can  only  be  done  by  creating  an  equal  estate  in  them 
both.  As  therefore  the  grantor  has  thus  united  their  names,  the 
law  gives  them  a  thorough  union  in  all  other  respects.     For, 

"2.  The  properties  of  a  joint  estate  are  derived  from  its  unity,  which 
is  fourfold :  The  tmity  of  interest,  the  unity  of  title,  the  unity  of 
time,  and  the  unity  of  possession ;  or  in  other  words,  joint  tenants 
have  one  and  the  same  interest,  accruing  by  one  and  the  same  convey- 
ance, commencing  at  one  and  the  same  time,  and  held  by  one  and  the 
same  undivided  possession. 

12  Com.  180  et  seq. 
Big. Int. — 4 

/  / 


50  JOINT    OWNERSHIP  (Ch.  4 

"First,  they  must  have  one  and  the  same  interest.  One  joint  ten- 
ant cannot  be  entitled  to  one  period  of  duration  or  quantity  or  in- 
terest in  lands,  and  the  other  to  a  different;  one  cannot  be  tenant 
for  life,  and  the  other  for  years ;  one  cannot  be  tenant  in  fee,  and 
the  other  in  tail.  But  if  land  be  limited  to  A.  and  B.  for  their  lives, 
this  makes  them  joint  tenants  of  the  freehold;  if  to  A.  and  B.  and 
their  heirs,  it  makes  them  joint  tenants  of  the  inheritance.  If  the 
land  be  granted  to  A.  and  B.  for  their  lives,  and  to  the  heirs  of  A., 
here  A.  and  B.  are  joint  tenants  of  the  freehold  during  their  re- 
spective lives,  and  A.  has  the  remainder  of  the  fee  in  severalty:  or 
if  land  be  given  to  A.  and  B.,  and  the  heirs  of  the  body  of  A.,  here 
both  have  a  joint  estate  for  life,  and  A.  hath  a  several  remainder  in 
tail. 

"Secondly,  joint  tenants  must  also  have  an  unity  of  title;  their  es- 
tate must  be  created  by  one  and  the  same  act,  whether  legal  or  illegal ; 
as  by  one  and  the  same  grant,  or  by  one  and  the  same  disseisin.  Joint 
tenancy  cannot  arise  by  descent  or  act  of  law ;  but  merely  by  purchase 
or  acquisition  by  the  act  of  the  party :  and  unless  that  act  be  one  and 
the  same,  the  two  tenants  would  have  different  titles ;  and  if  they 
had  different  titles,  one  might  prove  good  and  the  other  bad,  which 
would  absolutely  destroy  the  jointure. 

"Thirdly,  there  must  also  be  an  unijty  of  tlrne;  their  estates  must 
be  vested  at  one  and  the  same  period,  as  well  as  by  one  and  the  same 
title.  As  in  case  of  a  present  estate  made  to  A.  and  B.,  or  a  re- 
mainder in  fee  to  A.  and  B.  after  a  particular  estate;  in  either  case 
A.  and  B.  are  joint  tenants  of  this  present  estate,  or  this  vested  re- 
mainder. But  if,  after  a  lease  for  life,  the  remainder  be  limited  to 
the  heirs  of  A.  and  B.,  and  during  the  continuance  of  the  particular 
estate  A.  dies,  which  vests  the  remainder  of  one  moiety  in  his  heir; 
and  then  B.  dies,  whereby  the  other  moiety  becomes  vested  in  the 
heir  of  B. :  now  A.'s  heir  and  B.'s  heir  are  not  joint  tenants  of  this 
remainder,  but  tenants  in  common;  for  one  moiety  vested  at  one 
time,  and  the  other  moiety  vested  at  another.    ♦    *    * 

"Lastly,  in  joint  tenancy  there  must  be  unity  of  possession.  Joint 
tenants  are  said  to  be  seised  per  my  et  per  tout,  by  the  half  or  moiety, 
and  by  all;  that  is,  they  each  of  them  have  the  entire  possession,  as 
well  of  every  parcel  as  of  the  whole.  They  have  not,  one  of  them  a 
seisin  of  one-half  or  moiety,  and  the  other  of  the  other  moiety; 
neither  can  one  be  exclusively  seised  of  one  acre,  and  his  companion 
of  another;  but  each  has  an  undivided  moiety  of  the  whole,  and  not 
the  whole  of  an  undivided  moiety.     *     *    * 

"Upon  these  principles,  of  a  thorough  and  intimate  union  of  in- 
terest and  possession,  depend  many  other  consequences  and  incidents 
of  the  joint  tenant's  estate.  If  two  joint  tenants  let  a  verbal  lease  of 
their  land,  reserving  rent  to  be  paid  to  one  of  them,  it  shall  enure 
to  both,  in  respect  of  the  joint  reversion.  If  their  lessee  surrenders 
his  lease  to  one  of  them,  it  shall  also  enure  to  both,  because  of  the 


Ch.  4)  JOINT   OWNERSHIP  51 

privity  or  relation  of  their  estate.  On  the  same  reason,  livery  of 
seisin,  made  to  one  joint  tenant,  shall  enure  to  both  of  them:  and 
the  entry,  or  re-entry,  of  one  joint  tenant  is  as  effectual  in  law  as 
if  it  were  the  act  of  both.  In  all  actions  also  relating  to  their  joint 
estate,  one  joint  tenant  cannot  sue  or  be  sued  without  joining  the 
other.  *  *  *  Upon  the  same  ground  it  is  held,  that  one  joint  ten- 
ant cannot  have  an  action  against  another  for  trespass,  in  respect 
of  his  land;  for  each  has  an  equal  right  to  enter  on  any  part  of  it. 
But  one  joint  tenant  is  not  capable  by  himself  to  do  any  act  which 
may  tend  to  defeat  or  injure  the  estate  of  the  other;  as  to  let  leases, 
or  to  grant  copyholds:  and  if  any  waste  be  done,  which  tends  to  the 
destruction  of  the  inheritance,  one  joint  tenant  may  have  an  action  of 
waste  against  the  other,  by  construction  of  the  Statute  Westm.  II,  c. 
2T.  So,  too,  though  at  common  law  no  action  of  account  lay  for  one 
joint  tenant  against  another,  unless  he  had  constituted  him  his  bailiff 
or  receiver,  yet  now  by  the  Statute  4  Anne,  c.  16,  joint  tenants  may 
have  actions  of  account  against  each  other,  for  receiving  more  than 
their  due  share  of  the  profits  of  the  tenements  held  in  joint  tenancy. 

"From  the  same  principle  also  arises  the  remaining  grand  incident 
of  joint  estates ;  viz. :  The  doctrine  of  survivorship,  by  v/hich  when 
two  or  more  persons  are  seised  of  a  joint  estate,  or  inheritance,  for 
their  own  lives,  or  pur  auter  vie,  or  are  jointly  possessed  of  any 
chattel  interest,  the  entire  tenancy,  upon  the  decease  of  any  of  them 
remains  to  the  survivors,  and  at  length  to  the  last  survivor ;  and  he 
shall  be  entitled  to  the  whole  estate,  whatever  it  be,  whether  an  in- 
heritance or  a  common  freehold  only,  or  even  a  less  estate.  This 
is  the  natural  and  regular  consequence  of  the  union  and  entirety  of 
their  interest.  The  interest  of  two  joint  tenants  is  not  only  equal  or 
similar,  but  also  is  one  and  the  same.  One  has  not  originally  a  dis- 
tinct moiety  from  the  other;  but,  if  by  any  subsequent  act  (as  by 
alienation  or  forfeiture  of  either)  the  interest  becomes  separate  and 
distinct,  the  joint  tenancy  instantly  ceases.  But,  while  it  continues, 
each_ol  tw^jpint  tenants  has  a  concurrent  interest  in  the  whole ;  and 
therefore,  oh  the  death  of  his  companion,  the_sole  interest  in  the 
whole  remains  to  the  survivor.  For  the  interest  which  the  survivor 
originally  had  is  clearly  not  divested  by  the  death  of  his  companion ; 
and  no  other  person  can  now  claim  to  have  a  joint  estate  with  him, 
for  no  one  can  now  have  an  interest  in  the  whole,  accruing  by  the 
same  title,  and  taking  effect  at  the  same  time  with  his  own ;  neither 
can  any  one  claim  a  separate  interest  in  any  part  of  the  tenements; 
for  that  would  be  to  deprive  the  survivor  of  the  right  which  he  has 
in  all,  and  every  part.  As  therefore  the  survivor's  original  interest 
must  now  be  entire  and  several,  and  that  he  shall  alone  be  entitled 
to  the  whole  estate  (whatever  it  be)  that  was  created  by  the  original 
grant. 

■'This  right  of  survivorship  is  called  by  our  ancient  authors  the  jus 
accrescendi,  because  the  right  upon  the  death  of  one  joint  tenant  ac- 


52  JOINT   OWNERSHIP  (Ch,  4 

cumulates  and  Increases  to  the  survivors;  or,  as  they  themselves  ex- 
press it;  'Pars  ilia  communis  accrescit  superstitibus,  de  persona  in 
personam,  usque  ad  ultimam  superstitem.'  And  this  jus  accrescendi 
ought  to  be  mutual ;  which  I  apprehend  to  be  one  reason  why  neither 
the  king,  nor  any  corporation,  can  be  a  joint  tenant  with  a  private 
person.  For  here  is  no  mutuality ;  the  private  person  has  not  even 
the  remotest  chance  of  being  seised  of  the  entirety,  by  benefit  of  sur- 
vivorship;  for  the  king  and  the  corporation  can  never  die. 

"3.  We  are,  lastly,  to  inquire  how  an  estate  in  joint  tenancy  may  be 
severed  and  destroyed.  And  this  may  be  done  by  destroying  any_  of 
its  constituent  unities:  1.  That  of  time,  which  respects  only  the 
original  commencement  of  the  joint  estate,  cannot  indeed  (being  now 
past)  be  affected  by  any  subsequent  transactions.  But,  2.  The  joint 
tenants'  estate  may  be  destroyed,  without  any  alienation,  by  merely 
disuniting  their  possession.  For  joint  tenants  being  seised  per  my 
et  per  tout,  every  thing  that  tends  to  narrow  that  interest,  so  that  they 
shall  not  be  seised  throughout  every  part,  is  a  severance  or  destruction 
of  the  jointure.  And  therefore,  if  two  joint  tenants  agree  to  part 
their  lands,  and  hold  them  in  severalty,  they  are  no  longer  joint  ten- 
ants :  for  they  have  now  no  joint  interest  in  tlie  whole,  but  only  a  sev- 
eral interest  respectively  in  the  several  parts.  And  for  that  reason, 
also,  the  right  of  survivorship  is  by  such  separation  destroyed:  By 
common  law  all  the  joint  tenants  might  agree  to  make  partition  of 
the  lands,  but  one  of  them  could  not  compel  the  other  so  to  do;  for 
this  being  an  estate  originally  created  by  the  act  and  agreement  of  the 
parties,  the  law  would  not  permit  any  one  or  more  of  them  to  de- 
stroy the  united  possession  without  a  similar  universal  consent.  But 
now  by  the  Statutes  31  Hen.  VIII,  c.  1,  and  32  Hen.  VIII,  c.  32, 
joint  tenants,  either  of  inheritances  or  other  less  estates,  are  com- 
pellable, by  writ  of  partition  to  divide  their  lands.  3.  The  jointure 
may  be  destroyed  by  destroying  the  unity  of  title.  As  if  one  joint 
tenant  ahenes  and  conveys  his  estate  to  a  third  person:  here  the  joint 
tenancy  is  severed,  and  turned  into  tenancy  in  common;  for  the  gran- 
tee and  the  remaining  joint  tenant  hold  by  different  titles  (one  de- 
rived from  the  original,  the  other  from  the  subsequent  grantor), 
though,  till  partition  made,  the  unity  of  possession  continues.  But 
a  devise  of  one's  share  by  will  is  no  severance  of  the  jointure:  for 
no  testament  takes  effect  till  after  the  death  of  the  testator,  and  by 
such  death  the  right  of  the  survivor  (which  accrued  at  the  original 
creation  of  the  estate,  and  has  therefore  a  priority  to  the  other)  is 
already  vested.  4.  It  may  also  be  destroyed  by  destroying  the  unity 
of  interest.  And  therefore,  if  there  be  two  joint  tenants  for  life, 
and  the  inheritance  is'  purchased  by  or  descends  upon  either,  it  is  a 
severance  of  the  jointure;  though,  if  an  estate  is  originally  limited 
to  two  for  life,  and  after  to  the  heirs  of  one  of  them,  the  freehold 
1  shall  remain  in  jointure,  without  merging  in  the  inheritance;  be- 
cause, being  created  by  one  and  the  same  conveyance,  they  are  not 


Ch.  4)  JOINT    OWNERSHIP  53 

separate  estates  (which  is  requisite  in  order  to  a  merger),  but  branches 
of  one  entire  estate.  In  like  manner,  if  a  joint  tenant  in  fee  makes 
a  lease  for  life  of  his  share,  this  defeats  the  jointure:  for  it  destroys 
the  unity  both  of  title  and  of  interest.  And,  whenever  or  by  what- 
ever means  the  jointure  ceases  or  is  severed,  the  right  of  survivorship 
or~jus  accrescendi,  the  same  instant  ceases  with  it^  Yet,  if  one  of 
tlTrce  joint  tenants  alienes  his  share,  the  two  remaining  tenants  still 
hold  their  parts  by  joint  tenancy  and  survivorship:  and  if  one  of 
three  joint  tenants  release  his  share  to  one  of  his  companions,  though 
the  joint  tenancy  is  destroyed  with  regard  to  that  part,  yet  the  two  re- 
maining parts  are  still  held  in  jointure;  for  they  still  preserve  their 
original  constituent  unities.  But  when,  by  any  act  or  evenj,  different 
interests  are  created  in  the  several  parts  of  the  estate,  or  they  are 
held  by  different  titles,  or  if  merely  the  possession  is  separated;  so 
that  the  tenants  have  no  longer  these  four  indispensable  properties,  a 
sameness  of  interest,  and  undivided  possession,  a  title  vesting  at  one 
and  the  same  time,  and  by  one  and  the  same  act  or  grant ;  the  jointure 
is  instantly  dissolved.    *    *    * 

"An  estate  held  in  coparcenary  is  where  lands  of  inheritance  de-  ^-^z 
scend  from  the  ancestor  to  two  or  more  persons.  It  arises  either  by 
common  law  or  particular  custom.  By  common  law :  As  where  a 
person  seised  in  fee  simple  or  in  fee  tail  dies,  and  his  next  heirs  are 
two  or  more  females,  his  daughters,  sisters,  aunts,  cousins,  or  their 
representatives ;  in  this  case  they  shall  all  inherit,  as  will  be  more 
fully  shown  when  we  treat  of  descents  hereafter;  and  these  co-heirs 
are  then  called  coparceners ;  or^  for  brevity,  parceners  only.  Parcen- 
ers by  particular  custom  are  where  lands  descend,  as  in  gavelkind,  to 
all  the  males  in  equal  degree,  as  sons,  brothers,  yncles,  &c.  And  in 
either  of  these  cases,  all  the  parceners  put  together  make  but  one  heir, 
and  have  but  one  estate  among  them. 

"The  properties  of  parceners  are  in  some  respects  like  those  of 
j^oint  tenants;  they  having  the  same  unities  of  interest,  title  and 
possession.  They  may  sue  and  be  sued  jointly  for  matters  relating 
to  their  own  lands ;  and  the  entry  of  one  of  them  shall  in  some  cases  • 
enure  as  the  entry  of  them  all.  They  cannot  have  an  action  of  tres- 
pass against  each  other;  but  herein  they  differ  from  joint  tenants, 
that  they  are  also  excluded  from  maintaining  an  action  of  waste; 
for  coparceners  could  at  all  times  put  a  stop  to  any  waste  by  writ  of 
partition,  but  till  the  statute  of  Henry  the  Eighth,  joint  tenants  had 
no  such  power.  Parceners  also  differ  materially  from  joint  tenants 
in  four  other  points:  1.  They  always  claim  by  descent,  whereas  joint 
tenants  always  claim  by  purchase.  Therefore,  if  two  sisters  pur- 
chase lands,  to  hold  to  them  and  their  heirs,  they  are  not  parceners, 
but  joint  tenants;  and  hence  it  likewise  follows  thatjio  lands  can  be 
held  in  coparcenary,  but  estates  of  inheritance,  which  are  of  a  de- 
scendible~nature ;  whereas  not  only  estates  in  fee  and  in  tail,  but  for 
life  or  years,  may  be  held  in  joint  tenancy.     2.  There  is  not  unity  of 


t^ 


A 


54  JOINT  OWNERSHIP  (Ch.  4 

time  necessary  to  an  estate  of  coparcenary.  For  if  a  man  hath  two 
daughters,  to  whom  his  estate  descends  in  coparcenary,  and  one  dies 
before  the  other;  the  surviving  daughter  and  the  heir  of  the  other, 
or  when  both  are  dead,  their  two  heirs  are  still  parceners;  the  es- 
tates vesting  in  each  of  them  at  different  times,  though  it  be  the  same 
quantity  of  interest  and  held  by  the  same  title.  3.  Parceners,  though 
they  have  a  unity,  have  not  an  entirety  of  interest.  They  are  prop- 
erly entitled  each  to  the  whole  of  a  distinct  moiety;  and  of  course 
here  is  no  jus  accrescendi,  or  survivorship  between  them;  for  each 
part  descends  severally  to  their  respective  heirs,  though  the  unity  of 
possession  continues.  And  as  long  as  the  lands  continue  in  a  course 
of  descent,'  and  united  in  possession,  so  long  are  the  tenants  therein, 
whether  male  or  female,  called  parceners.  But  if  the  possession  be 
once  severed  by  partition,  they  are  no  longer  parceners,  but  tenants 
in  severalty;  or  if  one  parcener  alienes  her  share,  though  no  parti- 
tion be  made,  then  are  the  lands  no  longer  held  in  coparcenary,  but  in 
common. 

"Parceners  are  so  called,  saith  Littleton,  because  they  may  be  con- 
strained to  make  partition.     *     *     * 

"The  estate  in  coparcenary  may  be  dissolved,  either  by  partition, 
which  disunites  the  possession ;  by  alienation  of  one  parcener,  which 
disunites  the  title,  and  may  disunite  the  interest;  or  by  the  whole  at 
last  descending  to  and  vesting  in  one  single  person,  which  brings  it  to 
an  estate  in  severalty. 

"Tenants  in  common  are  such  as  hold  by  several  and  distinct  titles, 
but  by  unity  of  possession ;  because  none  loioweth  his  own  severalty, 
and  therefore  they  all  occupy  promiscuously.  This  tenancy,  there- 
fore, happens  where  there  is  a  unity  of  possession  merelVj  but  per- 
haps an  entire  disunion  of  interest,  of  title  and  of  time.  For  if  there 
be  two  tenants  in  common  of  lands,  one  may  hold  his  part  in  fee 
simple,  the  other  in  tail,  or  for  life;  so  that  there  is  no  necessary 
-unity  of  interest;  one  may  hold  by  descent,  the  other  by  purchase-; 
or  the  one  by  purchase  from  A.,  the  other  by  purchase  frQm  B. ; 
so  that  there  is  no  unity  of  title ;  one's  estate  may  have  been  vested 
fifty  years,  the  other's  but  yesterday;  so  that  there  is  no  unity  of 
time.  The  only  unity  there  is,  is  that  of  possession:  and  for  this 
Littleton  gives  the  true  reason,  because  no  man  can  certainly  tell  which 
part  is  his  own ;  otherwise  even  this  would  be  soon  destroyed. 

"Tenancy  in  common  may  be  created,  either  by  the  destruction  of 
the  two  other  estates  in  joint  tenancy  and  coparcenary,  or  by  special 
limitation  in  a  deed.  By  the  destruction  of  the  two  other  estates,  I 
mean  such  destruction  as  does  not  sever  the  unity  of  possession,  but 
only  the  unity  of  title  or  interest:  As,  if  one  of  two  joint  tenants  in 
fee  alienes  his  estate  for  the  life  of  the  alienee,  the  alienee  and  the 
other  joint  tenant  are  tenants  in  common ;  for  they  have  not  several 
titles,  the  other  joint  tenant  by  the  original  grant,  the  alienee  by  the 
new  aHenation ;   and  they  also  have  several  interests,  the  former  joint 


Ch.  4)  JOINT   OWNERSHIP  55 

tenant  in  fee  simple,  the  alienee  for  his  own  life  only.  So,  If  one 
joint  tenant  gives  his  part  to  A.  in  tail,  and  the  other  gives  his  to  B. 
in  tail,  the  donees  are  tenants  in  common,  as  holding  by  different  titles 
and  conveyances.  I'f  one  of  two  parceners  alienes,  the  alienee  and 
the  remaining  parcener  are  tenants  in  common;  because  they  hold 
by  different  titles,  the  parcener  by  descent,  the  alienee  by  purchase. 
So  likewise,  if  there  be  a  grant  to  two  men,  or  two  women,  and  the 
heirs  of  their  bodies,  as  might  have  been  the  case  had  the  limita- 
tion been  to  a  man  and  woman,  and  the  heirs  of  their  bodies  begotten : 
and  in  this,  and  the  like  cases,  their  issue  shall  be  tenants  in  common ; 
because  they  must  claim  by  different  titles,  one  as  heir  of  A.,  and  the 
other  as  heir  of  B. ;  and  those  two  not  titles  by  purchase,  but  de- 
scent. In  short,  whenever  an  estate  in  joint  tenancy  or  coparcenary 
is  dissolved,  so  that  there  be  no  partition  made,  but  the  unity  of  pos- 
session continues,  it  is  turned  into  a  tenancy  in  common. 

"A  tenancy  in  common  may  also  be  created  by  express  limitation 
in  a  deed ;  but  here  care  must  be  taken  not  to  insert  words  which  im- 
ply a  joint  estate;  and  then  if  lands  be  given  to  two  or  more,  and 
it  be  not  joint  tenancy,  it  must  be  a  tenancy  in  common.  But  the  law 
is  apt  in  its  constructions  to  favor  joint  tenancy  rather  than  tenancy  in 
common;  because  the  divisible  services  issuing  from  the  land  (as 
rent,  &c)  are  not  divided,  nor  the  entire  services  (as  fealty)  multiplied 
by  joint  tenancy,  as  they  must  necessarily  be  upon  a  tenancy  in  comr 
mon.  Land  given  to  two,  to  be  holden  the  one  moiety  to  one,  and 
the  other  moiety  to  the  other,  is  an  estate  in  common;  and,  if  one 
grants  to  another  half  of  his  land,  the  grantor  and  grantee  are  also 
tenants  in  common :  because,  as  has  been  before  observed,  joint  ten- 
ants do  not  take  by  distinct  halves  or  moieties;  and  by  such  grants 
the  division  and  severalty  of  the  estate  is  so  plainly  expressed,  that 
it  is  impossible  they  should  take  a  joint  interest  in  the  whole  of  the 
tenements.  But  a  devise  to  two  persons  to  hold  jointly  and  severally, 
is  said  to  be  a  joint  tenancy;  because  that  is  necessarily  implied  in 
the  word  'jointly,'  the  word  'severally'  perhaps  only  implying  the 
power  of  partition;  and  an  estate  given  to  A.  and  B.,  equally  to  be 
divided  between  them,  though  in  deeds  it  hath  been  said  to  be  a  joint 
tenancy  for  it  implies  no  more  than  the  law  has  annexed  to  that 
estate,  viz.,  divisibility,  yet  in  wills  it  is  certainly  a  tenancy  in  com- 
mon, because  the  devisor  may  be  presumed  to  have  meant  what  is 
most  beneficial  to  both  the  devisees,  though  his  meaning  is  imper- 
fectly expressed.  And  this  nicety  in  the  wording  of  grants  makes  it 
the  most  usual  as  well  as  the  safest  way,  when  a  tenancy  in  common 
is  meant  to  be  created,  to  add  express  words  of  exclusion  as  well  as 
description,  and  limit  the  estate  to  A.  and  B.,  to  hold  as  tenants  in 
common,  and  not  as  joint  tenants. 

"As  to  the  incidents  attending  a  tenancy  in  common:  Tenants  in 
common  (like  joint  tenants)  are  compellable  by  the  statutes  of  Henry 
VIiI  and  William  III,  before  mentioned,  to  make  partition  of  their 


56  JOINT  OWNERSHIP  (Ch.  4 

lands;  which  they  were  not  at  common  law.  They  properly  take 
,  by  distinct  moieties,  and  have  no  entirety  of  interest ;  and  therefore 
there  is  no  survivorship  between  tenants  in  conimpn.  Their  otlier  in- 
cidents are  such  as  merely  arise  from  the  unity  of  possession ;  and 
are  therefore  the  same  as  appertain  to  joint  tenants  merely  upon  that 
account;  such  as  being  liable  to  reciprocal  actions  of  waste,  and  of 
account,  by  the  statutes  of  Westm.  II,  c.  22,  and  4  Anne,  c.  16.    *    *    * 

"Estates  in  common  can  only  be  dissolved  in  two  ways:  1.  By 
uniting  all  the  titles  and  interests  in  one  tenant,  by  purchase  or  other- 
wise; which  brings  the  whole  to  one  severalty.  2.  By  making  par- 
tition between  the  several  tenants  in  common,  which  gives  them  all 
respective  severalties.  For  indeed  tenancies  in  common  differ  in 
nothing  from  sole  estates  but  merely  in  the  blending  and  unity  of  pos- 
session,    *     ♦     * " 

Tenancy  by  entirety,  is  only  incidentally  mentioned  by  Blackstone, 
and  then  not  under  that  name.  It  is  a  species  of  joint  tenancy  peculiar 
to  the  relation  of  husband  and  wife.  It  can  be  created  only  by  a  con- 
veyance and  to  persons  who  are  at  the  time  of  the  conveyance  hus- 
band and  wife.  Any  conveyance  to  husband  and  wife  operates  to 
vest  in  them  a  tenancy  by  the  entirety,  unless  specified  to  be  otherwise. 
The  doctrine  of  survivorship  obtains  in  tenancy  by  the  entirety  as  in 
joint  tenancy.  It  differs,  in  that  it  cannot  be  defeated  by  a  convey- 
ance of  either  one  of  the  tenants.  A  conveyance  to  the  husband  and 
wife  and  a  third  person  operates  to  give  the  husband  and  wife  one 
half  the  land  as  tenants  by  the  entirety  and  to  vest  the  other  half  in 
the  third  person  as  a  joint  tenant  or  tenant  in  common,  according  to 
the  language  of  the  conveyance. 

The  rights  which  the  husband  had  at  common  law  to  the  control 
and  disposition  of  his  wife's  real  property  during  their  joint  lives 
should  not  be  confused  with  the  rights  under  tenancy  by  entirety. 
Thus  if  H.  and  W.,  husband  and  wife,  are  seised  in  fee  as  tenants  by 
entirety,  and  H.  conveys  to  X.  in  fee,  X.  may  or  may  not  get  a  fee 
simple.  He  has  the  privilege  of  enjoying  the  land  during  the  joint 
life  of  H.  and  W.  because  of  H.'s  power  of  disposition  over  W.'s 
undivided  interest  during  coverture.  If  H.  survives  W.,  the  Avhole 
title  will  pass  to  him  by  the  doctrine  of  survivorship,  and  he  will  be 
estopped  to  assert  his  title  as  against  X.,  who  will  thus  obtain  an  in- 
defeasible fee  simple.  On  the  other  hand,  should  W.  survive  H., 
then,  H.'s  power  of  control  being  terminated,  the  doctrine  of  survivor- 
ship will  put  the  whole  fee  in  W. 

The  right  of  marital  control  by  a  husband  over  his  wife's  real  es- 
tate has  been  very  largely  abolished  by  rhodem  statutes;  and  in  many 
states  the  doctrine  of  tenancy  by  entirety  has_also  been  done  away 
with.  ~' "  ^ 

Another  form  of  joint  ownership  entirely  unknown  to  the  common 
law  is  that  of  community  property.  Under  this  species  of  ownership 
all  property  acquired  by  husband  and  wife  by  their  own  efforts  dur- 


Ch.  4)  JOINT  OWNERSHIP  57 

ing  marriage,  as  distinguished  from  gifts  to  either  one  of  them,  be- 
longs to  them  jointly.  Ordinarily  the  husband  is  given  the  manage- 
ment of  such  property  during  marriage.  On  the  death  of  either 
spouse,  one  half  of  the  property  goes  to  the  heirs  or  devisees  of  the 
deceased  spouse,  and  the  other  half  to  the  surviving  spouse.* 

2  On  joint  ownership  see  Digby,  op.  dt.  275-281 ;  Lltt.  §§  241-248,  250,  2.'54. 
265,  277,  2S0,  281.  283,  285,  287,  288.  290-292,  294,  295,  298,  299,  302-304,  309, 
319,  321,  322;  WUUams,  op.  cit.  134-141. 


58  DISSEISIN  AND  THE   REMEDIES   THEREFOR  (Ch.  5 

CHAPTER  V 
DISSEISIN  AND  THE  REMEDIES  THEREFOR 


The  importance  of  the  seisin  of  the  land,  the  freehold  possession  of 
it,  in  the  earlier  law,  has  already  been  referred  to.  This  doctrine  of 
seisin  remains  to  be  considered  from  still  another  point  of  view,  viz., 
as  to  the  effect  produced  upon  the  rights  of  persons  having  an  interest 
in  land  by  a  wrongful  ouster  or  disseisin^  therefrom. 

Suppose  that  A.  is  seised  of  land  in  fee  simple,  and  that  B.  wrong- 
fully enters  upon  him  and  puts  him  out.  The  effect  of  this  act  by 
B.,  technically  called  a  disseisin,  is  to  divest  A.  of  the  seisin  of  the 
land  and  to  vest  a  tortious  seisin  in  B.  Or,  again,  suppose  that  A. 
has  a  reversion  in  fee,  subject  to  a  life  estate  in  B.,  and  B.  wrong- 
fully enfeoft's  X.  in  fee.  This  also  operates  as  a  disseisin  of  A.  The 
same  result  follows  if  the  tenant  for  hfe  should  enfeoff  X.  in  tail. 
This  would  give  X.  a  tortious  seisin  in  tail,  with  a  tortious  reversion 
in  fee  in  B.,  the  tenant  for  life.  The  effect  of  a  disseisin,  if  com- 
mitted against  a  tenant  in  fee,  was  necessarily  to  deprive  him  of  all 

1  Beside  disseisin  in  tlie  narrow  sense  there  are  other  ousters  or  dispos- 
sessions of  land.  Blaclvstone  mentions  the  following:  Abatement,  intru- 
sion, discontinuance,  deforcement. 

"An  abatement  is  where  a  per.?on  dies  seised  of  an  Inheritance,  axid  be- 
fore the  heir  or  devisee  enters,  a  stranger  who  has  no  right  makes  entry, 
and  gets  possession  of  the  freehold ;  this  entry  of  him  is  called  an  abate- 
ment, and  he  himself  is  denominated  an  abator.     •     *     • 

"Intrusion  is  the  entry  of  a  stranger,  after  a  particular  estate  of  free- 
hold is  determined,  before  him  in  remainder  or  reversion.  And  it  happens 
where  a  tenant  for  term  of  life  dieth  seised  of  certain  lands  and  tenements, 
and  a  stranger  entereth  thereon,  after  such  death  of  the  tenant,  and  before 
any  entry  of  him  in  remainder  or  reversion.  This  entry  and  interposition 
of  the  stranger  differ  from  an  abatement  in  this;  that  an  abatement  is  al- 
ways to  the  prejudice  of  the  heir,  or  immediate  devisee;  an  intrusion  is  al- 
ways to  the  prejudice  of  him  in  remainder  or  reversion.     *     *     • 

"Discontinuance  happens  when  he  who  hath  an  estate  tail  maketh  a 
larger  estate  of  land  than  by  law  he  is  entitled  to  do,  in  which  case  the 
estate  is  good,  so  far  as  his  power  extends  who  made  it,  but  no  farther. 
As  if  a  tenant  in  tail  makes  a  feoffment  in  fee  simple  or  for  the  life  of  the 
feoffee,  or  in  tail ;  all  which  are  beyond  his  power  to  make,  for  that  by  the 
common  law  extends  no  farther  than  to  make  a  lease  for  his  own  life ;  in 
such  case  the  entry  of  the  feoffee  is  lawful  during  the  life  of  the  feoffor, 
but  if  he  retains  the  possession  after  the  death  of  the  feoffor,  it  is  an  in- 
jury, which  is  termed  a  discontinuance:  the  ancient  legal  estate,  which 
ought  to  have  survived  to  the  heir  in  tail,  being  gone,  or  at  least  suspend- 
ed, and  for  a  while  discontinued.     •     *     * 

"Deforcement,  in  its  most  extensive  sense,  is  nomen  generalissimum ;  a 
much  larger  and  more  comprehensive  expression  than  any  of  the  former: 
it  then  signifying  the  holding  of  any  lands  or  tenements  to  which  another 
person  hath  a  right." 

3  Bl.  Com.  167  et  seq. 

See  further,  on  the  old  law  of  disseisin.  Challis,  op.  cit.  89,  91.  405;  Leake, 
op.  cit.  4()-i:;;    1  Maitland,  op.  cit.  407-^57;   2  Poll.  &  Mait.  op.  cit.  40-80. 


Ch.  5)  DISSEISIN   AND   THE    REMEDIES   THEREFOB  59 

his  interest  in  the  land  and  to  vest  a  tortious  seisin  in  the  disseisor, 
which  might  be  divided  into  smaller  tortious  estates  in  the  manner 
above  indicated.  A.'s  interest  was  no  longer  an  estate;  after  the 
disseisin,  all  he  possessed  was  a  right  of  entry  or  a  right  of  action. 
These  rights  were  peculiarly  personal  to  himself.  They  could  descend 
to  his  heir,  but  they  could  not  be  alienated. 

A.'s  remedies  after  a  disseisin  of  the  sort  above  indicated  were 
three : 

He  had,  first,  the  right  of  self-help.  If  within  a  short  time  after  his 
disseisin  (under  the  older  law,  apparently  five  days)  he  made  a  re- 
entry upon  the  disseisor,  he  might  thereby  successfully  re-establish 
himself  in  the  seisin  of  the  land.  At  a  later  date  this  period  was  prob- 
ably somewhat  lengthened,  but  it  was  always  brief,  and  by  the  Stat- 
ute 3  Rich.  II,  ch.  8,  it  was  provided  that  no  entry  should  be  made, 
even  by  disseisee,'  if  it  involved  a  breach  of  the  peace.  If  the  cir- 
cumstances were  such  that  A.  could  not  safely  make  this  re-entry  up- 
on the  land,  he  could  keep  alive  his  right  of  entry  by  making  once  a 
year  as  near  the  land  as  possible  a  definite  assertion  of  his  right  there- 
to and  a  demand  for  the  repossession  thereof.  This  was  known  as 
keeping  alive  tlie  right  of  entry  by  continual  claim.  Even  under  these 
circumstances,  however,  the  right  of  entry  was  lost  if  the  disseisor 
died  in  the  wrongful  seisin  of  the  land,  so  that  the  wrongful  seisin 
thereof  descended  to  his  heirs.  In  this  case  the  right  of  entry  was 
said  to  be  tolled  by  descent  cast. 

If  the  disseisee,  for  one  reason  or  another,  lost  his  right  of  entry, 
he  was  then  driven  to  bring  his  action.  Actions  for  the  assertion  of 
rights  in  land  were  of  two  sorts :  Droitural  and  possessory.  The 
purpose  of  the  droitural  action,  as  the  name  indicates,  was  to  de- 
termine, as  between  the  plaintiff  and  the  defendant,  who  had  the  right 
to  the  land.  The  droitural  actions,  however,  were  very  slow,  very 
expensive,  and  gave  a  great  advantage  to  the  defendant,  because  of 
the  mere  fact  that  he  was  in  the  possession  of  the  land  with  respect 
to  which  the  action  was  being  brought.  Consequently  in  the  reign 
of  Henry  II  (1154-1189)  the  so-called  possessory  actions  first  made 
their  appearance.  The  purpose  of  these  actions  was  to  determine,  not 
the  question  of  the  ultimate  right  to  the  land,  but  who  was  entitled  to 
the  immediate  possession  thereof.  That  is  to  say,  in  the  hypothetical 
case  under  discussion,  if  A.  had  lost  his  right  of  entry,  his  next 
step  would  be  to  bring  a  possessory  action  based  upon  the  fact  that 
he  had  been  in  possession  of  the  land.  In  this  action  neither  A.  nor 
B.  would  be  allowed  to  raise  the  question  of  the  ultimate  ownership  of 
the  land ;  the  only  question  that  would  be  decided  would  be  whether 
A.  had  been  in  the  seisin  of  the  land  and  B.  had  put  him  out  with- 
out any  judgment  justifying  B.  in  so  doing.  If  so,  A.  would  have 
judgment  for  a  restoration  to  possession  and  for  damages.  After  A. 
had  been  thus  revested  wnth  the  seisin  of  the  land,  B.  might,  as  plain- 
tiff, litigate  the  question  of  who  was  really  entitled  to  the  land.     The 


60  DISSEISIN  AND  THE   REMEDIES  THEREFOR  (Ch.  5 

purpose  and  limited  scope  of  this  possessory  action  made  it  nec(»«'.sary 
that  it  should  be  brought  within  a  short  time  after  the  disseisin  com- 
plained of.  The  form  of  possessory  action  first  devised  was  the 
novel  disseisin;  later  other  forms  were  invented  to  meet  varying 
situations. 

If  the  plaintiff,  A.,  delayed  too  long  in  the  bringing  of  his  posses- 
sory action,  so  that  this  method  of  procedure  was  no  longer  open 
to  him,  or  if  he  was  defeated  in  his  possessory  action  through  some 
technical  reason,  he  would  still  be  able  to  bring  his  droitural  action. 
He  would  no  longer  be  able  to  rely  upon  his  right  to  immediate  pos- 
session, but  despite  the  fact  that  the  defendant  would  have  the 
benefit  of  the  actual  seisin  of  the  land,  the  plaintiff  would  still  have 
it  open  to  him  to  show  that  he  nevertheless  had  the  better  right  to  the 
land  than  the  defendant,  and  if  he  ultimately  succeeded  in  obtaining 
a  judgment  in  the  droitural  action,  he  would  then  be  restored  to  the 
land  from  which  he  had  been  disseised. 

By  the  beginning  of  the  17th  century  both  the  writs  of  entry  and 
writs  of  right  had  become  practically  obsolete,  and  the  action  of 
ejectment,  of  which  mention  has  been  made  in  the  discussion  of  lease- 
hold estates,  had  become  the  almost  universal  method  of  settling  the 
right  to  both  possession  and  title  of  land.  The  use  of  fictions  by  which 
this  action  was  enlarged  from  its  original  narrow  purpose  is  char- 
acteristic of  the  method  by  which  the  common-law  judges  accomplish- 
ed desirable  results  by  the  adoption  of  means  that  were  originally 
intended  for  no  such  purpose.  The  development  of  the  old  action  of 
quare  ejecit  into  the  modern  action  of  ejectment  is  thus  described:^ 

"As  the  plaintiff  did  not  possess  a  freehold  interest,  his  title  to  tlie 
lands  was  only  so  far  acknowledged  in  this  action  [quare  ejecit]  as  to 
give  him  damages  for  the  injury  he  had  sustained,  but  not  to  restore 
to  him  the  possession  of  his  term.    *    *    * 

"Whilst  the  feudal  system  continued  in  its  vigour,  and  estates  for 
years  retained  their  original  character,  but  little  inconvenience  re- 
sulted to  tenants  from  this  imperfect  remedy.  But  when  the  feudal 
policy  declined,  and  agriculture  became  an  object  of  legislative  re- 
gard, the  value  and  importance  of  estates  of  this  nature  considerably 
increased,  and  it  was  necessary  to  afford  lessees  for  years  a  more 
effectual  protection.  It  then  became  the  practice  for  leaseholders, 
when  disturbed  in  their  possessions,  to  apply  to  courts  of  equity  for 
redress,  and  to  prosecute  suits  against  the  lessor  himself,  to  obtain  a 
specific  performance  of  the  grant,  or  against  strangers  for  perpetual 
injunctions  to  quiet  the  possession;  and  these  courts  would  then  com- 
pel a  restitution  of  the  land  itself  to  the  party  immediately  injured. 

"The  courts  of  common  law  soon  afterwards  adopted  this  method 
of  rendering  substantial  justice;  not  indeed  by  the  invention  of  a 
new  writ,  which  perhaps  would  have  been  the  best  and  most  prudent 

sAclams,  Ejectment   (Sd  Ed.)  p.  8  et  seq. 


Ch.  5)  DISSEISIN    AND   THE   REMEDIES   THEREFOR  61 

method,  but  by  adapting  the  one  already  in  existence  to  the  circum- 
stances of  the  times ;  and  introducing,  in  the  prosecution  of  a  writ 
of  ejectment,  a  species  of  remedy  neither  warranted  by  the  original 
writ,  nor  demanded  by  the  declaration,  namely,  a  judgment  to  recover 
the  term,  and  a  writ  of  possession  thereupon. 

"It  is  singular  that  neither  the  causes  which  led  to  this  important 
change,  nor  the  principles  upon  which  it  was  founded,  are  recorded 
in  any  of  the  legal  authorities  of  those  times.  It  is  difficult,  if  not 
impossible,  to  ascertain  with  accuracy  the  precise  period  when  the 
alteration  itself  took  place ;  although  it  certainly  must  have  been  made 
between  the  years  1455  and  1499,  since  in  the  former  year  it  is  said 
by  one  of  the  judges  that  damages  only  can  be  recovered  in  ejectment; 
and  an  entry  of  judgment  is  still  extant,  given  in  the  latter  of  those 
years,  that  the  plaintiff  in  ejectment  shall  recover  both  his  damages 
and  his  term.  It  is  said,  indeed,  in  argument  as  early  as  the  year 
1458,  that  the  term  may  be  recovered  in  ejectment,  but  no  reason  is 
assigned  for  the  assertion,  nor  is  any  decision  upon  the  point  on  rec- 
ord until  the  time  of  the  entry  already  mentioned. 

"But,  whatever  might  be  the  causes  which  occasioned  this  alteration, 
the  effects  they  produced  were  highly  important.  A  new  efficacy  was 
given  to  the  action  of  ejectment,  the  old  real  actions  fell  into  disuse, 
and  in  the  subsequent  periods  of  our  history  the  action  of  ejectment 
became  the  regular  mode  of  proceeding  for  the  trial  of  possessory 
titles. 

"That  an  action  of  ejectment,  by  means  of  this  alteration  in  its  judg- 
ment, might  restore  termors  to  possession  who  had  been  actually 
ejected  from  their  lands,  is  sufficiently  obvious;  but  it  is  not  perhaps 
so  evident  how  the  same  proceeding  could  be  applicable  to  a  disputed 
title  of  freehold,  or  why,  as  soon  after  happened,  the  freeholder  should 
have  adopted  this  novel  remedy.  No  report  of  the  case,  in  which  this 
bold  experiment  was  first  made,  is  extant;  but  from  the  innumerable 
difficulties  which  attend  real  actions,  it  is  not  surprising  that  the  free- 
holder should  take  advantage  of  a  fiction  which  enabled  him  to  avoid 
them ;  and  as  the  Court  of  Common  Pleas  possessed  an  exclusive  right 
of  judicature  in  matters  of  real  property,  it  is  probable  that  the  ex- 
periment originated  in  the  Court  of  King's  Bench,  as  an  indirect 
method  of  giving  to  that  court  a  concurrent  jurisdiction  with  the 
Common  Pleas.  But,  however  this  may  be,  the  experiment  succeeded, 
and  the  uses  of  the  action,  as  well  as  its  nature,  were  changed. 

"When  first  the  remedy  was  applied  to  the  trial  of  disputed  titles, 
the  proceedings  were  simple  and  regular,  differing  but  little  from  those 
previously  in  use,  when  an  ejectment  was  brought  to  recover  the 
damages  of  an  actual  trespass.  The  right  to  the  freehold  could  only 
be  determined  in  an  indirect  manner.  It  was  a  term  which  was  to  be 
recovered  by  the  judgment  in  the  action,  and  it  was  therefore  neces- 
sary that  a  term  should  be  created;   and  as  the  injury  complained  of 


62  DISSEISIN    AND   THE    REMEDIES   THEREFOE  (Ch.  5 

in  the  writ  was  the  loss  of  possession,  it  was  also  necessary  that  the 
person  to  whom  the  term  was  given,  should  be  ejected  from  the  lands. 

"In  order  to  obtain  the  first  of  these  requisites,  namely,  a  term,  the 
party  claiming  title  entered  upon  the  disputed  premises,  accompanied 
by  another  person,  to  whom,  whilst  on  the  lands,  he  sealed  and  de- 
livered a  lease  for  years.  This  actual  entry  was  absolutely  nec- 
essary; for,  according  to  the  old  law  of  maintenance,  it  was  a  penal 
offence  to  convey  a  title  to  another,  when  the  grantor  himself  was 
not  in  possession.  And,  indeed,  it  was  at  first  doubted,  whether  this 
nominal  possession,  taken  ■  only  for  the  purpose  of  trying  the  title, 
was  sufficient  to  excuse  him  from  the  penalties  of  that  offence. 

"It  is  from  the  necessity  of  this  entry,  also,  that  the  remedy  by 
ejectment  is  confined  to  cases  in  which  the  claimant  has  a  right  to  the 
possession.  When  only  a  right  of  property  or  a  right  of  action  re- 
mained to  him,  the  entry  would  be  illegal,  and  consequently  not  suf- 
ficient to  enable  the  party  making  it  to  convey  a  title  to  his  lessee; 
and  as  the  principles  of  the  action  still  remain  the  same,  although  its 
proceedings  are  changed,  the  right  to  make  an  entry  continues  to  be 
requisite,  though  the  entry  itself  is  no  longer  necessary. 

"The  lessee  of  the  claimant,  having  acquired  all  right  to  the  pos- 
session, by  means  of  the  lease  already  mentioned,  remained  upon  the 
land,  and  then  the  person  who  came  next  upon  the  freehold,  animo 
possidendi,  or,  according  to  the  old  authorities,  even  by  chance,  was 
accounted  an  ejector  of  the  lessee,  and  a  trespasser  on  his  possession. 
A  writ  of  trespass  and  ejectment  was  then  served  upon  the  ejector 
by  the  lessee.  The  cause  regularly  proceeded  to  trial  as  in  the  com- 
mon action  of  trespass ;  and  as  the  lessee's  claim  could  only  be  found- 
ed upon  the  title  of  his  lessor,  it  was  necessary  to  prove  the  lessor's 
interest  in  the  land,  to  enable  the  plaintiff  (the  lessee)  to  obtain  a 
verdict.  The  claimant's  title  was  thus  indirectly  determined;  and 
although  the  writ  of  possession  must  of  course  have  been  issued  in 
the  plaintiff's  name,  and  not  in  his  own,  yet  as  the  plaintiff  had  pros- 
ecuted the  suit  only  as  the  lessor's  friend,  he  would  immediately  give 
up  to  him  the  possession  of  the  lands. 

"In  the  infancy  of  the  experiment,  this  mode  of  proceeding  could  be 
attended  with  no  ill  consequences.  As  the  party  previously  in  posses- 
sion, must  in  contemplation  of  law  be  upon  the  lands,  and  certainly, 
animo  possidendi,  the  friend  of  the  claimant  was  allowed  to  consider 
him  as  an  ejector,  and  make  him  the  defendant  in  the  action.  When, 
however,  the  remedy  became  more  generally  used,  this  simple  method 
was  found  to  be  productive  of  considerable  evil.  It  was  easy  for  the 
claimant  to  conceal  the  proceedings  from  the  person  in  possession, 
and  to  procure  a  second  friend  to  enter  upon  the  lands,  and  eject  his 
lessee  immediately  after  the  execution  and  delivery  of  the  lease.  The 
lessee  would  then  commence  his  suit  against  this  ejector,  and  the  par- 
ty in  possession  might  consequently  be  ousted  of  his  lands,  without  any 


Ch.  5)  DISSEISIN    AND   THE    REMEDIES   THEREFOR  63 

opportunity  of  defending  his  title.  To  check  this  evil,  a  rule  of  the 
court  was  made,  forbidding  a  plaintiff  in  ejectment  to  proceed  against 
such  third  person  without  giving  a  previous  notice  of  the  proceedings 
to  the  party  in  possession;  and  it  was  the  practice  for  such  party,  on 
the  receipt  of  this  notice,  if  he  had  any  title  to  the  lands,  to  apply 
to  the  court  for  permission  to  defend  the  action;  which  application 
was  uniformly  granted,  upon  his  undertaking  to  indemnify  the  de- 
fendant (the  third  person)  from  the  expenses  of  the  suit.  The  action 
however  proceeded  in  the  name  of  such  defendant,  though  the  person 
in  possession  was  permitted  at  the  trial  to  give  evidence  of  his  own 
title. 

"A  considerable  alteration  in  the  manner  of  proceeding  in  the  ac- 
tion was  occasioned  by  this  rule,  although  it  was  only  intended  to  rem- 
edy a  particular  evil.  It  became  the  general  practice  to  have  the  lessee 
ejected  by  some  third  person,  since  called  the  casual  ejector,  and  to 
give  the  regular  notice  to  the  person,  instead  of  making  him,  as  before, 
the  trespasser  and  defendant.  A  reasonable  time  was  allowed  by  the 
courts,  for  tlie  person  in  possession,  after  the  receipt  of  the  notice, 
to  make  his  application  for  leave  to  defend  the  action,  and  if  he 
neglected  to  do  so,  the  suit  proceeded  against  the  casual  ejector,  as  if 
no  notice  had  been  necessary. 

"The  time  when  this  rule  was  made  is  unknown,  but  as  the  evil 
it  was  intended  to  remove  must  soon  have  been  discovered,  it  prob- 
ably was  adopted  shortly  after  the  remedy  grew  into  general  use.  It 
seems  also  to  have  been  the  first  instance,  in  which  the  courts  inter- 
fered in  the  practice  of  the  action,  and  is  therefore  remarkable  as  the 
foundation  of  the  fictitious  system,  by  which  it  is  now  conducted. 

"In  this  state,  with  the  exception  of  a  few  practical  regulations, 
not  necessary  to  be  here  noticed,  the  action  of  ejectment  continued 
until  the  time  of  the  Commonwealth.  Much  trouble  and  inconveni- 
ence, however,  attended  the  observance  of  the  different  formalities. 
If  several  persons  were  in  possession  of  the  disputed  lands,  it  was 
necessary  to  execute  separate  leases  upon  the  premises  of  the  different 
tenants,  and  to  commence  separate  actions  upon  the  several  leases. 
Difficulties  also  attended  the  making  of  entries,  and  the  action  of 
ejectment  had  by  this  time  grown  into  such  general  use,  as  to  make 
these  inconveniences  generally  felt.  A  remedy,  however,  was  discov- 
ered for  them  by  Lord  Chief  Justice  Rolle,  who  presided  in  the  Court 
of  Upper  Bench  during  the  Protectorate;  and  a  method  of  proceed- 
ing in  ejectment  was  invented  by  him,  which  at  once  superseded  the 
ancient  practice,  and  has  by  degrees  become  fully  adapted  to  the 
modern  uses  of  the  action. 

"By  the  new  system,  all  the  forms  which  we  have  been  describing 
are  dispensed  with.  No  lease  is  sealed,  no  entry  or  ouster  really 
made,  the  plaintiff  and  defendant  in  the  suit  are  merely  fictitious 
names,  and  in  fact  all  those  preliminaries  are  now  only  feigned,  which 
the  ancient  practice  required  to  be  actually  complied  with.    ♦    *    * 


64  DISSEISIN    AND   THE    REMEDIES   THEREFOR  (Ch.  5 

"A.  the  person  claiming  title,  delivers  to  B.  the  person  in  pos- 
session, a  declaration  in  ejectment,  in  which  C.  and  D.,  two  fictitious 
persons,  aire  made  respectively  plaintiff  and  defendant;  and  in  which 

C.  states  a  fictitious  demise  of  the  lands  in  question  from  A.  to  him- 
self for  a  term  of  years,  and  complains  of  an  ouster  from  them  by 

D,  during  its  continuance.  To  this  declaration  is  annexed  a  notice, 
supposed  to  be  written  and  signed  by  D.,  informing  B,  of  the  pro- 
ceedings, and  advising  him  to  apply  to  the  court  for  permission  to 
be  made  defendant  in  his  place,  as  he,  having  no  title,  shall  leave  the 
suit  undefended.  Upon  receipt  of  this  declaration,  if  B.  do  not 
apply  within  a  limited  time  to  be  made  defendant,  he  is  supposed  to 
have  no  title  to  the  premises ;  and  upon  an  affidavit  that  a  declaration 
has  been  regularly  served  upon  him,  the  court  will  order  judgment 
to  be  entered  against  D.  the  casual  ejector,  and  possession  of  the 
lands  will  be  given  to  A.  the  party  claiming  title.  When,  however, 
B.  applies,  pursuant  to  the  notice,  to  defend  the  action,  the  courts 
annex  certain  conditions  to  the  privilege.  Four  things  are  necessary 
to  enable  a  person  to  support  an  ejectment,  namely,  title,  lease,  entry, 
and  ouster;  and  as  the  three  latter  are  only  feigned  in  the  modern 
■practice,  C.  (the  plaintiff)  would  be  nonsuited  at  the  trial  if  he  were 
obliged  to  prove  them.  The  courts  therefore  compel  B.  if  made  de- 
fendant, to  enter  into  a  rule,  generally  known  as  the  consent^ruk^ 
by  which  he  undertakes,  that  at  the  trial  he  will  confess  the  lease, 
entry,  and  ouster  to  have  been  regularly  made,  and  rely  solely  upon 
the  merits  of  his  title;  and,  lest  at  the" trial  he  should  break  his  en- 
gagement, another  condition  is  also  added,  that  in  such  case,  he  shall 
pay  the  costs  of  the  suit,  and  shall  allow  judgment  to  be  entered 
against  D.  the  casual  ejector.  These  conditions  being  complied  with, 
the  declaration  is  altered,  by  making  B.  the  defendant  instead  of  D., 
and  the  cause  proceeds  to  trial  in  the  same  manner  as  in  other  ac- 
tions." 


Ch.  6)  USES   AND   TRUSTS  65 

CHAPTER  VI 
USES  AND  TRUSTS 


The  system  of  rights,  powers,  privileges,  and  immunities  as  outlined 
in  the  preceding  chapters  constituted  the  measure  of  interests  in  land 
as  developed  and  recognized  by  the  courts  of  common  law.  Then, 
however,  as  now,  men  for  economic  or  social  or  religious  reasons  fre- 
quently desired  to  engage  in  courses  of  action  or  to  achieve  results 
which  either  were  actually  forbidden  by  the  law  or  which  at  least 
the  law  would  not  recognize  or  protect.  It  was  for  reasons  of  this 
sort  that  the  doctrine  of  uses  made  its  appearance  in  England.  In  its 
essence  the  idea  of  a  use  was  extremely  simple.  A.  puts  the  title  to 
land  in  B.,  with  the  understanding  that  C.  is  to  have  the  enjoyment 
or  use  of  the  land.  B.  in  such  a  case  is  the  only  one  who  has  any  legal 
title ;  C.  is  entirely  dependent  upon  B.'s  honesty  and  good  faith  for  the 
protection  of  the  interest  in  the  land  which  A.  intended  that  C.  should 
have.  It  is  evident  therefore,  that  the  desire  of  A.  to  achieve  the 
result  and  his  trust  in  B.'s  good  faith  must  be  strong  to  induce  him 
to  engage  in  such  a  course  of  action. 

The  historical  origin  of  uses  is  obscure.  There  is  some  reason  for 
believing  that  traces  of  them  can  be  found  as  far  back  as  the  12th 
century.  One  of  the  eariiest  and  most  potent  influences  in  the  creation 
of  uses  was  the  desire  to  evade  the  mortmain  statutes.  Within  a 
century  after  the  Norman  Conquest  the  large  accumulation  of  land  in 
the  hands  of  the  religious  corporations  began  to  be  a  source  of  con- 
siderable trouble  in  English  law  and  policy.  The  conveyance  of  land  in 
mortmain  was  forbidden  by  Magna  Carta,  section  43  (1217),  which 
provided  as  follows: 

"It  shall  not  be  lawful  from  henceforth  to  any  to  give  his  lands  to  any 
religious  house,  and  to  take  the  same  land  again,  to  hold  of  the  same 
house.  Nor  shall  it  be  lawful  to  any  house  of  religion  to  take  the 
lands  of  and  to  lease  the  same  to  him  of  whom  they  were  received  to 
be  holden.  If  any  from  henceforth  so  give  his  lands  to  any  religious 
house,  and  thereupon  be  convict,  the  gift  shall  be  utterly  void,  and  the 
land  shall  accrue  to  the  lord  of  the  fee." 

After  the  adoption  of  Magna  Carta  the  broad  construction  that  was 
put  upon  this  section  rendered  it  impossible  for  a  monastery  to  receive 
the  legal  title  to  land.  This  being  the  situation,  if  a  person  wished  to 
convey  land  to  a  monastery,  some  indirect  method  became  inevitable. 
The  following  device  was  the  one  that  was  resorted  to :  The  grantor 
A.,  would  make  a  Hvery  of  seisin  of  the  land  in  question  to  B.  in  fee, 
with  a  direction  to  B.  to  allow  the  monastery  to  have  the  occupation 
Big. Int. — 5 


66  USES   AND   TRUSTS  (Ch.  6 

and  use  of  the  land ;  B.'s  legal  title  being  purely  nominal,  for  the  pur- 
pose of  evading  the  statutory  provision.  In  a  court  of  law  B.  was  the 
only  person  having  an  interest  in  the  land.  But  B.,  in  accordance 
with  the  terms  of  his  understanding,  would  permit  the  monastery  to 
take  possession  of  the  land.  Its  only  standing  at  law  was  that  of  a 
tenant  at  will,  and  if  B.  violated  his  pledge  and  turned  the  monastery 
out  it  was  helpless  legally.  In  such  a  case  some  other  means  must  be 
found  to  coerce  B.  into  performing  his  obligation.  This  means  was 
found  at  an  early  date  in  the  spiritual  authorities.  If  B.  refused  to 
abide  by  his  agreement,  the  parish  priest  or  possibly  the  abbot  of  the 
monastery  or  some  other  religious  authority  would  threatenthe  sjgirit- 
ual  punishment  of  interdict,  or  excommunication,  and,  in  a  time  when 
the  religious  influences  were  as  powerful  and  widespread  as  they  were 
in  England  in  the  12th  century,  such  a  threat  was  potent,  and  in  many 
cases  quite  sufficient  to  compel  B.  to  perform  his  obligation  and  to  pro- 
tect the  beneficiary  in  the  enjoyment  of  the  property.  This  device  of 
evading  the  mortmain  statute  by  means  of  uses  was  abolished  in  1391 
by  15  Rich.  II,  ch.  5,  which  provides  as  follows: 

"It  is  agreed  and  assented,  that  all  they  that  be  possessed  by  feoff- 
ment or  by  other  manner  to  the  use  of  religious  people,  or  other  spirit- 
ual persons,  of  "lands  and  tenements,  fees,  advowsons,  or  any  man- 
ner of  other  possessions  whatsoever,  to  amortise  them,  and  whereof  the 
said  religious  and  spiritual  persons  take  the  profits,  that  betwixt  this 
and  the  feast  of  St.  Michael  next  coming  they  shall  cause  them  to  be 
amortised  by  the  licence  of  the  king  and  of  the  lords,  or  else  that  they 
shall  sell  and  aliene  them  to  some  other  use,  between  this  and  the 
said  feast,  upon  pain  to  be  forfeited  to  the  king  and  to  the  lords,  ac- 
cording to  the  form  of  the  said  Statute  of  Religious,  as  lands  purchased 
by  religious  people;  and  that  from  henceforth  no  such  purchase  be 
made,  so  that  such  religious  or  other  spiritual  persons  take  thereof  the 
profits,  as  afore  is  said,  upon  pain  aforesaid ;  and  that  the  same  stat- 
ute extend  and  be  observed  of  all  lands,  tenements,  fees,  advowsons, 
and  other  possessions  purchased  or  to  be  purchased  to  the  use  of  guilds 
or  fraternities." 

By  this  time,  however,  the  desirability  of  uses  for  purposes  other 
than  those  of  evading  the  mortmain  statute  had  become  so  manifest 
that  the  practice  grew  in  spite  of  the  forbidding  of  uses  for  religious 
purposes.  One  of  the  most  important  of  the  other  sources  of  uses  was 
the  facility  it  afforded  in  evading  the  onerous  feudal  obligations.  This 
may  best  be  illustrated  by  a  concrete  case.  Suppose  that  A.,  a  tenant 
in  fee  simple,  is  likely  to  die  within  a  year  or  so  leaving  a  minor  son  as 
his  heir.  If  A.  dies  seised  of  the  lands,  the  overlord  (the  king,  if  A,  is 
a  tenant  in  capite)  will  be  entitled  to  wardship  and  marriage  in  the  land, 
with  the  prejudicial  results  to  the  interest  of  A,'s  heir  that  have  already 
been  pointed  out.  If  now,  A.,  during  his  life,  enfeoffs  B.,  a  young  man, 
of  the  land  in  fee  simple  for  the  benefit  of  A,'s  minor  son  in  fee  simple. 


r 


Ch.  6)  USES    AND   TRUSTS  67 

A.  will  have  to  pay  the  customary  fine  for  alienation,  which  is  slight ; 
but  the  legal  title  of  the  land  will  then  be  in  B.,  and  A.'s  later  death  will 
have  no  effect  upon  B.'s  legal  title.  At  the  same  time  the  heir,  for 
whose  use  the  legal  title  has  been  put  in  B.,  will  be  protected  in  the 
enjoyment  of  the  land,  and  the  profit  of  it  will  be  accumulated  for  him 
and  not  go  into  the  pocket  of  the  overlord,  and  he  will  also  be  free 
from  the  feudal  burden  of  the  lord's  right  of  marriage.  There  are 
certain  drawbacks.  Against  these  advantages  must  be  put  the  fact 
that,  since  the  legal  title  is  in  B.,  the  land  will  be  subject  to  dower  in 
favor  of  B.'s  wife,  if  he  has  one,  and  if  B.  should  die  seised  of  the 
lands  his  overlord  would  be  entitled  to  whatever  feudal  incidents  might 
accrue  as  a  result  of  that  death.  These  possibilities  can  be  reduced  to 
a  minimum  if  A.,  instead  of  enfeoffing  B.  alone,  enfeoffs  B.,  C,  and 
D.  as  joint  tenants  of  the  land  in  fee.  In  this  case  the  doctrine  of  sur- 
vivorship will  cut  out  dower  rights  and  any  rights  on  the  part  of  the 
overlord,  so  long  as  any  of  the  joint  tenants  survive.  When  the  title 
becomes  vested  in  a  single  joint  tenant,  the  process  can  be  repeated  by 
a  conveyance  by  him  to  other  joint  tenants  upon  the  same  uses.  The 
technical  name  that  is  given  to  the  one  who  holds  the  legal  title  in  (t^jc«*- 
the  manner  above  described  is  feoffee  to  uses;  the  beneficiary  is  tech- 
nically known  as  the  cestui  que  use. 

Another  advantage  that  the  doctrine  of  uses  offered  was  in  the 
facility  with  which  equitable  titles  could  be  conveyed.  The  common- 
Taw  methods  of  conveying  legal  title  have  already  been  discussed. 
These  common-law  doctrines  had  no  application  to  the  interests  of  the 
beneficiary,  and  a  mere  parol  transfer  or  creation  of  a  beneficial  in- 
terest was  sufficient.  Again,  as  has  been  pointed  out,  the  legal  title  to 
land  held  in  knight  service  could  not  be  left  by  will.  This  was  evaded 
by  the  device  of  A.  enfeoffing  B.  of  land  in  fee  simple,  to  hold  to  the 
use  of  such  persons  as  A.  should  designate  by  his  will. 

Other  causes  that  contributed  to  the  development  of  the  doctrine 
of  uses  was  the  desire  of  debtors  to  defeat  creditors  in  their  rights 
in  the  debtor's  land  and  to  render  more  difficult  the  forfeiture  of  the 
land  for  treason.  The  first  of  these  two  purposes  was  prevented  by 
statute  at  a  rather  early  date. 

Whether  the  doctrine  of  uses  would  have  grown  to  the  extent  that  it 
did,  if  the  protection  of  the  cestui  que  use  had  been  merely  the  re- 
ligious one  that  has  already  been  referred  to,  may  perhaps  be  doubted. 
But  in  time  another  coercive  power  was  developed  for  the  protec- 
tion of  the  beneficiary  in  the  jurisdiction  of  the  King's  chancellor. 
I  The  chancellor,  in  the  11th  and  12th  centuries,  was  known  as  the 
"keeper  of  the  King's  conscience."  At  a  time  when  the  distinction 
between  the  legislative  and  executive  and  judicial  powers  of  the  gov- 
ernment was  not  sharply  defined,  and  the  king  was  regarded  as  the 
source  of  all  power,  it  was  the  common  custom  for  persons  who  were 
aggrieved  and  found  themselves  in  a  situation  where  either  the  courts 


68  USES   AND   TRUSTS  (Ch.  C 

of  law  were  powerless  to  protect  them  or  where  there  was  no  right  that 
the  common  law  recognized,  to  petition  the  king  for  redress  from  the 
hardship  of  their  particular  case.  These  petitions  were  customarily 
referred  by  the  king  to  the  chancellor  for  his  action,  and  by  the  mid- 
dle of  the  14fh  century  the  jurisdiction  of  the  chancellor  to  deal  with 
such  cases  as  a  matter  of  course  was  definitely  established.  The  posi- 
tion of  the  cestui  que  use  would  make  a  particularly  strong  appeal,  since 
the  unfairness  of  allowing  the  feoffee  to  uses  to  take  advantage  of 
the  fact  that  he  had  the  legal  title  and  to  exercise  it  in  violation  of  the 
terms  of  his  trust  was  so  obvious  that  the  chancellor  would  not  hesi- 
tate to  give  relief  in  such  a  case.  By  the  end  of  the  14th  century  peti- 
tions to  enforce  uses  of  lands  begin  to  appear  in  the  records,  and  from 
that  time  on  they  grow  steadily  in  number. 

The  method  by  which  the  chancellor  operated  is  worth  noticing. 
The  legal  title  to  the  land  was  in  the  feoffee  to  uses  and  that  legal  title 
could  not  be  directly  affected  by  the  chancellor.  Indeed,  he  made 
no  attempt  to  deal  with  or  change  the  legal  title  as  such.  His  method 
of  procedure  was  based  upon  a  recognition  of  the  fact  that  the  legal 
title  to  the  land  was  in  the  feoffee  to  uses,  and  it  took  the  form  of 
commanding  the  feoffee  to  uses  so  to  deal  with  the  land  which  he  thus 
owned  that  the  cestui  que  use  should  be  allowed  to  enjoy  it  in  accord- 
ance with  the  will  of  the  creator  of  the  use.  If  the  feoffee  refused 
to  do  this,  the  chancellor  would  fine  him,  or,  more. commonly,  imprison 
him,  until  he  was  ready  to  comply  with  the  order.  The  writ  by  which 
the  chancellor  summoned  the  feoffee  to  uses  began  with  the  Latin 
words  "Sub  poena,"  and  consequently  the  process  in  chancery  to  en- 
force a  use  was  frequently  referred  to  as  the  subpoena. 

Once  the  general  principle  had  been  definitely  established  of  pro- 
tection by  the  chancellor  of  the  rights  of  the  cestui  que  use,  the  law 
of  uses  began  to  take  definite  shape  and  various  questions  in  connection 
therewith  began  to  arise.  Naturally  one  of  the  first  questions  would 
be  as  to  who  would  be  bound  by  the  terms  of  the  use. 

Clearly  the  original  feoffee  to  uses,  B.  would  be  bound  to  abide  by  his 
agreement.  If  B.  died,  leaving  an  heir,  D.,  to  whom  the  legal  title  of 
the  land  would  pass,  the  chancellor  at  first  refused  to  enforce  the  use 
against  him.  The  reason  for  this  was  that  the  right  of  the  cestui  was 
regarded  as  being  not  so  much  a  property  right,  a  right  in  the  land, 
as  a  personal  right  against  the  feoffee  to  uses  as  an  individual.  Since 
the  confidence  had  been  reposed  only  in  B.,  the  original  feoffee,  it 
seemed  that  tliere  was  no  good  reason  for  charging  the  conscience  of 
B.'s  heir  with  respect  to  the  land  to  which  he  had  the  legal  title,  where 
he  had  personally  made  no  promises  with  respect  thereto.  By  the  mid- 
dle of  the  15th  century,  however,  it  was  established  that  B.'s  heir  would 
take  the  land  subject  to  the  use.  Since  he  had  paid  nothing  for  the 
land,  the  justice  of  this  result  seems  clear.  On  the  same  principh,  if 
B.  during  his  life  enfeoft'ed  X.  of  the  land  as  a  gift,  the  chancellor  had 


Ch.  6)  USE  SAND   TEUSTS  69 

no  hesitation  in  enforcing  the  terms  of  the  use  against  X.  Again,  if 
X.  paid  a  consideration  for  the  land,  but  at  the  time  that  he  took  it 
knew  of  the  fact  that  it  was  held  subject  to  a  use  in  favor  of  C,  there 
would  seem  to  be  no  good  reason  why  X.,  the  purchaser,  should  com- 
plain if  the  use  was  also  enforced  against  him.  On  the  other  hand,  if 
the  purchaser  had  paid  value  for  the  land  and  took  the  legal  title  in 
ignorance  of  the  fact  that  any  third  person  was  supposed  to  have  a 
beneficial  interest  in  the  land,  it  seemed  unfair  to  permit  the  beneficiary 
to  subject  X.  to  his  claim.  In  this  situation  both  the  beneficiary  and 
the  purchaser  were  equally  innocent,  and  the  purchaser  had  the  added 
advantage  over  the  beneficiary  that  he  had  the  legal  title  to  the  land, 
and  as  such  would  naturally  be  entitled  to  enjoy  it  as  he  saw  fit,  unless 
the  beneficiary  could  successfully  sustain  the  burden  of  affirmatively 
establishing  that  he  should  be  allowed  to  have  the  beneficial  enjoyment 
despite  the  fact  of  X.'s  legal  title.  The  principle  involved  in  this 
latter  type  of  case  is  embodied  in  the  proposition  that  a  purchaser  in 
good  faith  and  for  a  valuable  consideration  of  the  legal  title  to  land 
cuts  off  equitable  rights  therein. 

It  will  be  noticed  that  in  the  various  situations  so  far  dealt  with  the 
person  who  succeeded  to  the  title  of  the  land  with  respect  to  which  the 
cestui  claimed,  did  so  either  as  heir  o~r  donee  or  purchaser  of  the  title 
of  the  original  feoffee  to  uses ;  that  is  to  say,  he  took  through  the  feoffee, 
and  he  was  subject  to  the  equities  that  were  good  against  the  feoffee, 
except  in  the  case  already  mentioned  of  his  being  a  purchaser  in  good 
faith  for  a  valuable  consideration.  If  the  feoffee  to  uses  forfeited  his 
estate,  so  that  it  went  to  his  overlord  by  escheat,  or  if  he  was  disseised 
of  the  land,  or  if  he  died  leaving  a  wife,  who  was  allotted  dower  in 
the  land,  the  cestui  que  use  lost  his  right  as  against  the  person  so  tak- 
ing title.  The  reason  for  this  difference  was  that  in  the  cases  last  men- 
tioned the  persons  taking  title  took  it  after  the  feoffee  to  uses,  but  not 
through  the  feoffee  to  uses ;  their  title  being  considered  as  being  sep- 
arate from  and  independent  of,  that  of  the  feoffee.  This  doctrine  is 
technically  expressed  in  the  statement  that  the  interest  of  the  cestui 
que  use  may  be  enforced  against  a  person  taking  title  in  the  per,  but 
not  against  a  person  taking  in  the  post. 

Another  problem  that  has  to  be  considered  is  as  to  when  a  use  was 
raised.  If  A.  enfeoffed  B.  in  fee,  and  declared  that  the  use  of  the  land 
was  to  be  in  C,  there  could  be  no  question.  It  was  not  necessary  to 
employ  any  particular  terms  in  order  to  declare  the  use ;  any  language 
that  made  it  clear  that  a  specified  person  was  to  have  the  beneficial  in- 
terest in  the  land  was  sufficient.  Where  the  use  was  not  expressly 
declared,  there  was  more  doubt  in  the  matter;  the  problem  then  being 
to  ascertain  the  intent  of  the  feoffor  from  other  circumstances.  If 
the  feoffee  paid  a  consideration  for  the  land,  the  inference  would  seem 
clear  that  he  was  not  taking  the  title  merely  to  benefit  some  one  else, 
and  the  beneficial  interest  would  be  regarded  as  being  in  him,  together 


70  USES  AND  TRUSTS  (Ch.  6 

with  the  legal  title.  This  doctrine  prevailed  in  the  lack  of  any  other 
evidence  showing  the  one  entitled  to  the  beneficial  interest  to  be  other 
than  the  feoffee  to  uses,  even  where  the  consideration  was  a  merely 
nominal  one.  If  A.  conveyed  the  land  to  B.  for  life  or  for  years,  and 
nothing  was  said  as  to  who  should  have  the  use  of  the  land,  it  was  con- 
sidered that  the  feudal  obligations  that  would  be  due  from  B.  to  A.  by 
virtue  of  the  tenure  existing  between  them  would  be  a  sufficient  con- 
sideration to  keep  the  use  of  the  land  in  B.  In  either  of  these  two  last 
mentioned  cases  if  the  use  was  expressly  declared  to  be  in  a  third  per- 
son, such  express  declaration  would  prevail. 

Another  situation  was  this.  A.  might  enfeoff  B.  of  the  land  in  fee 
simple,  and  there  be  neither  a  consideration  nor  any  statement  as  to 
who  was  to  have  the  beneficial  use  of  the  land.  To  understand  the 
construction  that  the  chancellor  put  upon  this  state  of  affairs,  it 
must  be  remembered  that  it  has  been  said  that  by  the  15th  century  in 
England  "the  use  [custom]  of  the  country  to  deliver  land  to  be  safely 
kept  has  made  a  mere  delivery  of  possession  no  evidence  of  right  with- 
out valuable  consideration."  ^  This  being  the  practice,  the  chancellor 
would  come  to  the  conclusion  that  the  purpose  of  the  conveyance  was 
merely  to  put  the  legal  title  in  B.,  but  that  A.  intended  to  keep  the 
beneficial  interest  in  the  land  in  himself.  In  these  circumstances  the 
use  was  technically  said  to  result  to  A.  A  similar  doctrine  would  be 
applied  in  the  case  of  a  feoffment  to  B.  in  fee,  where  the  use  was  de- 
clared only  for  a  smaller  estate  than  a  fee,  as,  for  example,  to  C.  for 
life.  In  this  case  the  use  after  the  termination  of  C.'s  life  estate  would 
result  to  A.  in  fee,  and  this  result  would  follow  even  though  a  consid- 
eration was  paid;  the  presumption  being  that  the  consideration  was 
paid  for  the  use  declared. 

So  far,  as  a  matter  of  convenience,  we  have  considered  uses  raised  on 
a  feoffment.  It  should  be  noticed,  however,  that  a  use  might  be  raised 
upon  any  other  form  of  common-law  conveyance,  such  as  a  fine,  or  a 
recovery,  or  a  lease  and  release. 

Up  to  here  we  have  been  considering  cases  in  which  the  use  was 
raised  in  connection  with  a  conveyance  of  the  legal  title  by  the  creator 
of  the  use  to  some  third  person  for  the  benefit  of  the  cestui  que  use ; 
that  is,  the  use  has  always  been  raised  in  connection  with  a  change  of  the 
possession  of  the  land  from  the  original  creator  of  the  use  to  the  gran- 
tee of  the  legal  title.  It  was  entirely  possible,  however,  to  raise  a 
use  without  such  transmutation  of  possession.  Thus  A.,  the  owner  of 
land  in  fee  simple,  might  merely  sell  to  B.  for  a  valuable  consideration, 
the  use  of  the  land  either  for  years  or  for  life  or  in  fee.  In  such  case 
A.  would  still  retain  the  legal  title,  but  B.'s  equity  and  his  right  to  the 
protection  of  the  chancellor  would  be  just  as  clear,  and  the  protection 
would  be  just  as  freely  given,  as  in  the  cases  which  have  hitherto  been 
considered.    The  chancellor  would  by  his  orders  compel  A.  to  permit 

»  Gilbert,  Uses  and  Trusts,  125. 


Ch.  6)  USES   AND  TRUSTS  71 

B.  to  have  the  use  of  the  land  in  accordance  with  the  terms  of  their 
bargain,  so  that  A.  would  have  only  the  bare  legal  title,  and  B.  the  bene-  '^^^^ 
ficial  interest.  This  transaction  was  technically  known  as  a  bargain  .  '^^--' 
_and_sale.  Since  it  was  not  a  dealing  with  the  legal  interest  in  the  land, 
it  did  not  have  to  satisfy  any  of  the  common-law  formalities  as  to  con- 
veyances. A  mere  informal  agreement  between  the  parties  was  suffi- 
cient, if  the  chancellor  was  satisfied  as  to  what  the  terms  of  the  bargain 
were.  On  the  other  hand,  the  chancellor  would  not  assist  B.,  unless  B. 
had  paid  a  valuable  consideration  for  the  use  of  the  land.  While  in  the 
common-law  courts  a  promise  under  seal  was  just  as  binding  on 
A.  as  though  it  was  supported  by  a  valuable  consideration,  and,  while 
the  deed  was  one  of  the  established  methods  of  conveying  common-law 
interests  in  land,  these  mere  formalities  were  not  regarded  by  the 
chancellor  as  being  sufficient  to  entitle  B.  to  enforce  against  A.  a  prom- 
ise which  was  not  supported  by  a  valuable  consideration.  This  doc- 
trine was  modified  in  the  16th  century  in  one  type  of  case  which  will 
be  subsequently  considered. 

With  the  growth  of  uses  the  possibility  of  creating  in  the  cestui  es- 
tates of  various  sizes,  similar  to  the  legal  estates,  but  with  much  more 
flexibility  in  their  creation,  became  recognized.  Use  estates  might  be 
created  for  years,  for  life,  in  tail  or  in  fee,  in  reversion  or  in  remainder, 
and  otherwise.    This  will  be  considered  at  greater  length  subsequently. 

The  custom  of  raising  uses  in  land  grew  constantly  in  England,  and 
by  the  end  of  the  15th  century  a  large  part  of  English  lands  were  held 
subject  to  uses,  so  that  the  legal  title  to  the  land  was  in  one  person, 
and  the  beneficial  title  to  the  land  in  another.  While  this  custom  had 
the  advantages  that  have  been  mentioned  above,  it  also  had  certain 
disadvantages.  Titles,  for  example,  were  necessarily  in  an  uncertain 
condition.  The  strongest  objection  to  the  prevalence  of  uses  came 
from  the  crown,  because  of  the  serious  encroachments  that  were  made 
on  the  feudal  rights  of  the  crown  as  a  result  of  the  creation  of  equitable 
titles  which  were  entirely  free  from  the  common-law  feudal  obliga- 
tion. Several  attempts  were  made  to  meet  this  situation.  One  of 
them,  passed  in  1483,  was  as  follows : 

St.  1  Rich.  Ill  (1483)  c.  1 :  "Forasmuch  as  by  privy  and  unknown 
feoffments,  great  unsurety,  trouble,  costs,  and  grievous  vexations  daily 
grow  among  the  King's  subjects,  insomuch  that  no  man  that  buyeth 
any  lands,  tenements,  rents,  service,  or  other  hereditaments,  nor  wo- 
men that  have  jointures  or  dowers  in  any  lands,  tenements,  or  other 
hereditaments,  nor  men's  last  wills  to  be  performed,  nor  leases  for  term 
of  life,  or  of  years,  no  annuities  granted  to  any  person  or  persons  for 
their  services  for  term  of  their  lives  or  otherwise  be  in  perfect  surety, 
nor  without  great  trouble  and  doubt  of  the  same,  because  of  the  said 
privy  and  unknown  feoffments:  (2)  For  remedy  whereof,  be  it  or- 
dained, established,  and  enacted,  by  the  advice  of  the  Lords  Spiritual 
and  Temporal,  and  by  the  Commons  in  this  present  Parliament  assem- 


72  USES  AND  TEUSTS  (Ch.  6 

bled,  and  by  authority  of  the  same,  that  every  estate  feoffment,  gift, 
release,  grant,  leases  and  confirmations  of  lands,  tenements,  rents,  serv- 
ices, or  hereditaments,  made  or  had,  or  hereafter  to  be  made  or  had  by 
any  person  or  persons  being  of  full  age,  of  whole  mind,  at  large,  and 
not  in  duress,  to  any  person  or  persons ;  and  all  recoveries  and  ex- 
ecutions had  or  made,  shall  be  good  and  effectual  to  him  to  whom  it  is 
so  made,  had  or  given,  and  to  all  other  to  his  use,  (3)  against  the  seller, 
feoffor,  donor,  or  grantor  thereof,  (4)  and  against  the  sellers,  feoffors, 
donors,  or  grantors,  and  every  of  them,  his  or  their  heirs,  claiming  the 
same  only  as  heir  or  heirs  to  the  sellers,  feoffors,  donors,  or  grantors 
and  every  of  them,  (5)  and  against  all  other  having  or  claiming  any  title 
or  interest  in  the  same,  only  to  the  use  of  the  same  seller,  feoffor, 
donor  or  grantor,  sellers,  feoffors,  donors  or  grantors,  or  his  or  their 
said  heirs  at  the  time  of  the  bargain,  sale,  covenant,  gift,  or  grant  made, 
(6)  saving  to  every  person  or  persons  such  right,  title,  action  or  interest, 
by  reason  of  gift  in  tail  thereof  made,  as  they  ought  to  have  had,  if 
this  Act  had  not  been  made." 

The  effect  of  this  statute  was  to  give  to  the  cestui  que  use  power  to 
pass  to  his  grantee  both  his  own  estate  and  the  legal  estate  of  the  feoffee 
to  uses.  But  this  was  merely  a  privilege,  the  exercise  of  which  lay  in 
the  discretion  of  the  cestui.  The  statute  did  very  little  toward  doing 
away  with  what  was,  from  the  point  of  view  of  the  crown,  the  fun- 
damental evil,  viz.,  the  existence  of  the  separate  equitable  title.  Some 
fifty  years  later,  upon  the  insistence  of  Henry  VIII,  the  so-called  Stat- 
ute of  Uses  was  passed  for  the  purpose  of  definitely  doing  away  with 
the  system  of  double  ownership,  legal  and  equitable.^ 

St.  27  Hen.  VIII  (1536)  c.  10:-  "Where  by  the  common  laws  of  this 
realm,  lands,  tenements  and  hereditament's  be  not  devisable  by  testa- 
ment, (2)  nor  ought  to  be  transferred  from  one  to  another,  but  by  sol- 
emn livery  and  seisin,  matter  of  record,  writing  sufficient  made  bona 
fide,  without  covin  or  fraud;  (3)  yet  nevertheless  divers  and  sundry 
iniaginations,  subtle  inventions  and  practices  have  been  used,  whereby 
the  hereditaments  of  this  realm  have  been  conveyed  from  one  to  an- 
other by  fraudulent  feoffments,  fines,  recoveries,  and  other  assur- 
ances craftily  made  to  secret  uses,  intents  and  trusts ;  (4)  and  also  by 
wills  and  testaments,  some  time  made  by  nude  parolx  and  words, 
sometimes  by  signs  and  tokens,  and  sometimes  by  writing,  and  for  the 
most  part  made  by  such  persons  as  be  visited  with  sickness,  in  their 
extreme  agonies  and  pains,  or  at  such  time  as  they  have  scantly  had 
any  good  memory  or  remembrance ;  (5)  at  which  times  they  being  pro- 
voked by  greedy  and  covetous  persons  lying  in  wait  about  them,  do 
many  times  dispose  indiscreetly  and  unadvisedly  their  lands  and  inher- 
itances;   (6)  by  reason  whereof,  and  by  occasion  of  which  fraudulent 

2  On  uses  prior  to  the  statute  of  uses  see  2  Bl.  op.  cit.  327-332 ;  Challis,  op. 
pit.  385,  3S6;  Digby,  op.  cit.  cli.  VI;  Leake,  op.  cit.  78-S2;  Williams,  op.  cit. 
1G5-170. 


Ch.  6)  USES   AND  TRUSTS  73 

feoffments,  fines,  recoveries,  and  other  like  assurances  to  uses,  con- 
fidences and  trusts,  divers  and  many  heirs  have  been  unjustly  at  sun- 
dry times  disinherited,  the  lords  have  lost  their  wards,  marriages,  re- 
liefs, harriots,  escheats,  aids  pur  fair  fils  chivaHer  &  pur  file  marier, 
(7)  and  scantly  any  person  can  be  certainly  assured  of  any  lands  by 
them  purchased,  nor  know  surely  against  whom  they  shall  use  their 
actions  or  executions  for  their  rights,  titles  and  duties ;  (8)  also  men 
married  have  lost  their  tenancies  by  the  curtesy,  (9)  women  their  dow- 
ers, (10)  manifest  perjuries  by  trial  of  such  secret  wills  and  uses  have 
been  committed;  (11)  the  King's  Highness  hath  lost  the  profits  and 
advantages  of  the  lands  of  the  persons  attainted,  (12)  and  of  the  lands 
craftily  put  in  feoffments  to  the  uses  of  aliens  born,  (13)  and  also 
the  profits  of  waste  for  a  year  and  a  day  of  lands  of  felons  attainted, 
(14)  and  the  lords  their  escheats  thereof;  (15)  and  many  other  in- 
conveniences have  happened  and  daily  do  increase  among  the  king's 
subjects,  to  their  great  trouble  and  inquietness,  and  to  the  utter  sub- 
version of  the  ancient  common  laws  of  this  realm ;  (16)  for  the  extirp- 
ing  and  extinguishment  of  all  such  subtle  practiced  feoffments,  fines, 
recoveries,  abuses  and  errors  heretofore  used  and  accustomed  in  this 
realm,  to  the  subversion  of  the  good  and  ancient  laws  of  the  same,  and 
to  the  intent  that  the  King's  Highness,  or  any  other  his  subjects  of  this 
realm,  shall  not  in  any  wise  hereafter  by  any  means  or  inventions 
be  deceived,  damaged  or  hurt,  by  reason  of  such  trusts,  uses  or  con- 
fidences:  (17)  it  may  please  the  King's  most  royal  majesty,  That  it 
may  be  enacted  by  his  Highness,  by  the  assent  of  the  Lords  Spiritual 
and  Temporal,  and  the  Commons,  in  this  present  Parliament  assem- 
bled, and  by  the  authority  of  the  same,  in  manner  and  form  following ; 
that  is  to  say.  That  where  any  person  or  persons  stand  or  be  seised,  or 
at  any  time  hereafter  shall  happen  to  be  seised,  of  and  in  any  honours, 
castles,  manors,  lands,  tenements,  rents,  services,  reversions,  remain- 
ders or  other  hereditaments,  to  the  use,  confidence  or  trust  of  any  other 
person  or  persons,  or  of  any  body  politick,  by  reason  of  any  bargain, 
sale,  feoffment,  fine,  recovery,  covenant,  contract,  agreement,  will  or 
otherwise,  by  any  manner  or  means  whatsoever  it  be  ;  that  in  every  such 
case,  all  and  every  such  person  and  persons,  and  bodies  politick  that 
have  or  hereafter  shall  have  any  such  use,  confidence  or  trust  in  fee 
simple,  fee  tail,  for  term  of  life  or  for  years  or  otherwise,  or  any  use, 
confidence  or  trust  in  remainder  or  reverter,  shall  from  henceforth 
stand  and  be  seised,  deemed  and  adjudged  in  lawful  seisin,  estate  and 
possession  of  and  in  the  same  honours,  castles,  manors,  lands,  tene- 
ments, rents,  services,  reversions,  remainders,  and  hereditaments,  with 
their  appurtenances,  to  all  intents,  constructions  and  purposes  in  the 
law,  of  and  in  such  like  estates  as  they  had  or  shall  have  in  use,  trust  or 
confidence  of  or  in  the  same;  (19)  and  that  the  estate,  title,  right  and 
possession  that  was  in  such  person  or  persons  that  were,  or  hereafter 
shall  be  seised  of  any  lands,  tenements  or  hereditaments,  to  the  use, 


74  USES    AND   TRUSTS  (Ch.  6 

confidence,  or  trust  of  any  such  person  or  persons  or  of  any  body  pol- 
itick, be  from  henceforth  clearly  deemed  and  adjudged  to  be  in  him  or 
them  that  have,  or  hereafter  shall  have  such  use,  confidence  or  trust, 
after  such  quality,  manner,  form,  and  conditions  as  they  had  before, 
in  or  to  the  use,  confidence  or  trust  that  was  in  them. 

"II.  And  be  it  further  enacted  by  the  authority  aforesaid,  That 
where  divers  and  many  persons  be,  or  hereafter  shall  happen  to  be, 
jointly  seised  of  and  in  any  lands,  tenements,  rents,  reversions,  re- 
mainders or  other  hereditaments,  to  the  use,  confidence,  or  trust  of  any 
of  them  that  be  so  jointly  seised,  that  in  every  such  case  those  person 
or  persons  which  have  or  hereafter  shall  have  any  such  use,  confidence 
or  trust  in  any  such  lands,  tenements,  rents,  reversions,  remainders  or 
hereditaments,  shall  from  henceforth  have,  and  be  deemed  and  adjudg- 
ed to  have  only  to  him  or  them  that  have,  or  hereafter  shall  have  any 
such  use,' confidence  or  trust,  such  estate,  possession  and  seisin,  of  and 
in  the  same  lands,  tenements,  rents,  reversions,  remainders  and  other 
hereditaments,  in  like  nature,  manner,  form,  condition  and  course,  as 
he  or  they  had  before  in  the  use,  confidence  or  trust  of  the  same  lands, 
tenements,  or  hereditaments ;  (2)  saving  and  reserving  to  all  and  singu- 
lar persons  and  bodies  politick,  their  heirs  and  successors,  other  than 
those  person  or  persons  which  be  seised,  or  hereafter  shall  be  seised,  of 
and  lands,  tenements  or  hereditaments,  to  any  use,  confidence  or  trust, 
all  siich  right,  title,  entry,  interest,  possession,  rents  and  action,  as  they 
or  any  of  them  had,  or  might  have  had  before  the  making  of  this  Act. 

"III.  And  also  saving  to  all  and  singular  those  persons,  and  to  their 
heirs,  which  be,  or  hereafter  shall  be  seised  to  any  use,  all  such  for- 
mer right,  title  entry,  interest,  possession,  rents,  customs,  services  and 
action  as  they  or  any  of  them  might  have  had  to  his  or  their  own 
proper  use,  in  or  to  any  manors,  lands,  tenements,  rents  or  heredita- 
ments, whereof  they  be,  or  hereafter  shall  be  seised  to  any  other  use, 
as  if  this  present  Act  had  never  been  had  nor  made ;  any  thing  con- 
tained in  this  Act  to  the  contrary  notwithstanding. 

"IV.  And  where  also  divers  persons  stand  and  be  seised  of  and  in 
any  lands,  tenements,  or  hereditaments,  in  fee  simple  or  otherwise,  to 
the  use  and  intent  that  some  other  person  or  persons  shall  have  and 
perceive  yearly  to  them,  and  to  his  or  their  heirs,  one  annual  rent  of 
X.  li.  or  more  or  less,  out  of  the  same  lands  and  tenements,  and  some 
other  person  one  other  annual  rent,  to  him  and  his  assigns  for  term  of 
life  or  years,  or  for  some  other  special  time,  according  to  such  intent 
and  use  as  hath  been  heretofore  declared,  limited  and  made  thereof : 

"V.  Be  it  therefore  enacted  by  the  authority  aforesaid,  That  in  every 
such  case  the  same  persons,  their  heirs  and  assigns,  that  have  such  use 
and  interest,  to  have  and  perceive  any  such  annual  rents  out  of  any 
lands,  tenements,  or  hereditaments,  that  they  and  every  of  them,  their 
heirs  and  assigns,  be  adjudged  and  deemed  to  be  in  possession  and  sei- 
sin of  the  same  rent,  of  and  in  such  like  estate  as  they  had  in  the  title, 


Ch.  6)  USES    AND    TRUSTS  75 

interest  or  use  of  the  said  rent  or  profit,  and  as  if  a  sufficient  grant,  or 
other  lawful  conveyance  had  been  made  and  executed  to  them,  by  such 
as  were  or  shall  be  seised  to  the  use  or  intent  of  any  such  rent  to  be 
had,  made  or  paid,  according  to  the  very  trust  and  intent  thereof, 
(2)  and  that  all  and  every  such  person  and  persons  as  have,  or  here- 
after shall  have,  any  title,  use  and  interest  in  or  to  any  such  rent  or 
profit,  shall  lawfully  distrain  for  non-payment  of  the  said  rent,  and  in 
their  own  names  make  avowries,  or  by  their  bailiffs  or  servants  make 
conisances  and  justifications,  (3)  and  have  all  other  suits,  entries  and 
remedies  for  such  rents,  as  if  the  same  rents  had  been  actually  and 
really  granted  to  them  with  sufficient  clauses  of  distress,  re-entry,  or 
otherwise,  according  to  such  conditions,  pains,  or  other  things  limited 
and  appointed,  upon  the  trust  and  intent  for  payment  or  surety  of  such 
rent." 

Stated  in  general  terms,  the  effect  of  the  Statute  of  Uses  was  that 
in  any  case  where  a  person  was  seised  of  a  freehold  estate  in  land  to 
the  use  of  another  person,  the  use  estate  of  the  second  person  was 
transformed  into  a  legal  estate  of  the  same  size  as  his  prior  use  estate, 
the  legal  title  of  that  amount  being  carried  from  the  holder  of  the  legal 
title  to  the  holder  of  the  equitable  title,  by  operation  of  the  statute.  The 
more  detailed  effects  of  the  statute  may  be  considered  from  three 
points  of  view.  1.  As  to  its  effect  on  methods  of  conveying  title  to 
land.  2.  As  to  its  effect  on  the  law  relating  to  the  creation  of  estates  in 
land.    3.  As  to  its  effect  on  the  modern  law  of  trusts. 

It  will  be  recalled  that  under  the  common  law  a  possessory  title  in 
land  could  be  passed  either  by  livery  of  seisin,  by  lease  and  release, 
by  fine,  or  by  recovery.  In  the  first  two  of  tliese  methods,  the  trans- 
action necessarily  involved,  in  the  case  of  the  livery,  a  formal  entry 
upon  the  land  and  a  formal  transfer  of  the  freehold  interest;  in  the 
case  of  a  lease  and  release,  the  formalities  were  nol  so  great,  but  an 
actual  taking  of  possession  by  the  lessee  was  necessary  before  the  re- 
lease could  be  executed.  In  the  case  of  the  fine  and  recovery,  the  trans- 
fer of  the  title  was  a  matter  of  judicial  record.  After^ the  £assjige  of 
tlie_Slatute.QlU.ses,  if  A.  should  enfeoff  B.  in  fee,  to  the  use  of  C.  in 
fee,  the  legal  title  would  pass  to  B.  by  virtue  of  the  feoffment.  Since 
he  stood  seised  to  the  use  of  C.  in  fee,  the  statute  would  operate  to 
carry  to  C.  the  legal  estate  in  fee,  leaving  B.  no  interest  in  the  land ; 
B.  being  what  is  technically  known  as  a  conduit  to  uses.  No  formal- 
ities were  necessary,  it  is  to  be  noticed,  in  the  declaring  of  the  use,  and 
consequently  the  effect  of  the  statute  was  to  create  a  legal  title  in  C, 
entirely  unaccompanied  by  any  formality ;  that  is,  the  legal  title  in  C. 
might  rest  purely  upon  a  parol  declaration  of  the  use.  This  was  true, 
not  only  where  the  use  was  raised  upon  a  feoffment;  it  applied  to  a 
use  raised  upon  any  of  the  common-law  conveyances.  This  situation 
continued  until  the  last  half  of  the  17th  century,  when  the  seventh  sec- 
tion of  the  Statute  of  Frauds  destroyed  the  possibility  of  creating  by 


76  USES   AND  TRUSTS  (Ch.  6 

parol  a  legal  title  by  raising  a  use  upon  a  common-law  conveyance.  It 
provided  as  follows : 

St.  29  Car.  II  (1676)  c.  3 :  "§  7.  And  be  it  further  enacted  by  the 
authority  aforesaid,  That  from  and  after  the  said  four  and  twentieth 
day  of  June  [1677]  all  declarations  of  creations  of  trusts  or  confidences 
of  any  lands,  tenements,  or  hereditaments,  shall  be  manifested  and 
proved  by  some  writing  signed  by  the  party  who  is  by  law  enabled 
to  declare  such  trust,  or  by  his  last  will  in  writing,  or  else  they  shall  be 
utterly  void  and  of  none  effect. 

"§  8.  Provided  always,  That  where  any  conveyance  shall  be  made 
of  any  lands  or  tenements  by  which  a  trust  or  confidence  shall  or  miay 
arise  or  result  by  the  implication  or  construction  of  law,  or  be  trans- 
ferred or  extinguished  by  an  act  or  operation  of  law,  then  and  in  every 
such  case  such  trust  or  confidence  shall  be  of  the  Hke  force  and  effect 
as  the  same  would  have  been  if  this  statute  had  not  been  made;  any- 
thing hereinbefore  contained  to  the  contrary  notwithstanding." 

In  these  cases  at  least  one  step  in  the  passage  of  the  title,  to  wit,  the 
common-law  conveyance,  either  involved  a  change  in  the  actual  pos- 
session of  the  land,  or  was  a  matter  of  judicial  record.  Neither  of 
these  facts  was  true  in  the  case  where  the  owner  of  the  land,  A.,  bar- 
gained and  sold  the  use  of  it  to  C.  In  such  a  case  there  would  be  no 
conveyance  at  all,  and  the  mere  informal  bargain  and  sale  of  the  use 
would  be  sufficient,  under  the  operation  of  the  statute  of  uses,  to  vest 
the  legal  title  in  C.  The  possibility  of  unlimited  and  secret  transfers 
of  the  legal  title  by  this  method  became  clear  shortly  after  tlie  passage 
^—^/j  ^  of  the  Statute  of  Uses.  To  remedy  this  weakness,  the  same  session  of 
Parliament  that  passed  the  Statute  of  Uses  passed  also  the  Statute  of 
Enrollments.     This  was  as  follows :  ^ 

St.  27'Hen.  VIII,  c.  16— St.  of  Enrollments  (1536):  "Be  it  enacted 
by  the  authority  of  this  present  Parliament,  That  from  the  last  day  of 
July,  which  shall  be  in  the  year  of  our  Lord  God  1536,  no  manors,  lands, 
tenements,  or  other  hereditaments,  shall  pass,  alter  or  change  from 
one  to  another,  whereby  any  estate  of  inheritance  or  freehold  shall 
be  made  or  take  effect  in  any  person  or  persons,  or  any  use  thereof  to 
be  made,  by  reason  only  of  any  bargain  and  sale  thereof,  except  the 
same  bargain  and  sale  be  made  by  writing  indented,  sealed,  and  in- 
rolled  in  one  of  the  King's  courts  of  record  at  Westminster,  (2)  or  else 
within  the  same  county  or  counties  where  the  same  manors,  lands,  or 
tenements,  so  bargained  and  sold,  lie  or  be,  before  the  Custos  Rotu- 
lorum  and  two  justices  of  the  peace,  and  the  clerk  of  the  peace  of  the 
same  county  or  counties,  or  two  of  them,  at  the  least,  whereof  the  clerk 
of  the  peace  to  be  one;  (3)  and  the  same  enrollment  to  be  had 
and  made  within  six  months  next  after  the  date  of  the  same  writ- 
ings indented;  *  *  *  (6)  and  that  the  clerk  of  the  peace  for 
the  time  being,  within  every  such  county,  shall  sufficiently  enroll  and 
ingross  in  parchment  the  same  deeds  or  writings  indented  as  is  afore- 


(jC^.juJci 


Ch.  6)  USES    AND    TRUSTS  77 

said;  (7)  and  the  rolls  thereof  at  the  end  of  every  year  shall  deliver 
unto  the  said  Gustos  Rotulorum  of  th^  same  county  for  the  time  be- 
ing, amongst  other  records  of  every  of  the  same  counties  where  any 
such  enrollment  shall  be  so  made,  to  the  intent  that  every  party  that  hath 
to  do  therewith,  may  resort  and  see  the  effect  and  tenor  of  every  such 
writing  so  enrolled. 

"II.  Provided  always.  That  this  Act,  nor  any  thing  therein  contained, 
extend  to  any  manor,  lands,  tenements,  or  hereditaments,  lying  or 
being  within  any  city,  borough  or  town  corporate  within  this  realm, 
wherein  the  mayors,  recorders,  chamberlains,  bailiffs  or  other  officer 
or  officers  have  authority,  or  have  lawfully  used  to  enroll  any  evi- 
dences, deeds,  or  other  writings  within  their  precinct  or  limits;  any 
thing  in  this  act  contained  to  the  contrary  notwithstanding." 

The  requirements  of  this  statute  gave  a  certain  degree  of  publicity 
to  the  creation  of  titles  by  means  of  a  bargain  and  sale,  and  thus 
rendered  the  entirely  secret  creation  of  them  in  this  manner  impossi- 
ble. It  was  still  possible  to  create  a  use  on  a  common-law  convey- 
ance by  means  of  a  parol  declaration  which  the  statute  would  then 
transform  into  a  legal  estate. 

One  other  method  of  creating  a  legal  title  also  received  recognition 
as  a  direct  result  of  the  statute  of  uses.  In  discussing  the  creation 
of  uses  prior  to  the  statute,  it  was  stated  that  the  chancellor  would 
not  enforce  a  gratuitous  use,  and  the  mere  fact  that  the  promise  was 
under  seal  would  not  alter  the  situation.  Shortly  after  the  passage 
of  the  statute  of  uses,  this  doctrine  was  modified  in  the  case  of  Shar- 
ington  V.  Strotton,^  decided  in  the  Queen's  Bench.  In  that  case  the 
owner  of  land  in  fee  executed  a  deed  in  which  he  stated  that,  in  order 
to  preserve  his  family  stock  and  that  of  his  brothers,  he  covenanted 
for  these  reasons  and  for  ^he  affection  that  he  bore  his  brothers  that 
he  would  stand  seised  of  the  land  in  question  to  his  own  use  for  his 
own  life,  then  to  the  use  of  his  brother  and  his  wife  for  their  lives, 
with  other  similar  limitations.  The  court  held  that  this  consideration 
of  blood  and  brotherly  love  was  sufficient. to  make  the  covenant  valid, 
and  that  consequently  the  uses  were  executed  under  the  statute  into 
corresponding  legal  estates.  This  is  the  so-called  covenant  to  stand, 
seised,  and  it  is  limited  in  its  scope  to  cases  of  family  settlement  in 
favor  of  near  relatives. 

About  thirty  years  later,  in  Callard  v.  Callard,*  the  court  of  Queen's 
Bench  held  that  these  limitations  for  family  purposes  could  be  raised 
only  by  deed,  thus  for  reasons  of  public  policy  giving  at  least  a  cer- 
tain degree  of  definiteness  in  the  creation  of  legal  titles.  It  will 
be  noticed  that  the  covenant  to  stand  seised  is  not  embraced  within 
the  Statute  of  Enrollments. 

The  covenant  to  stand  seised  and  the  bargain  and  sale  may  be  com- 
bined in  one  instrument,  as  where  A.,  in  consideration  that  B.  is  his 

sPlowd.  298   (1565).  «  Moore,  687  (1593). 


78  USES    AND   TRUSTS  (Ch.  6 

son  and  that  C.  has  paid  him  ilOO.,  covenants  that  B.  shall  have  the 
use  of  his  land  during  his  life,  and  after  his  death  that  C.  shall  have 
it  in  fee. 

In  the  17th  century  a  still  further  method  of  conveying  title  to  land 
was  worked  out,  and,  once  it  had  been  sanctioned  by  the  courts,  be- 
came the  most  popular  method  of  transferring  title.  It  had  the  ad- 
vantages of  requiring  neither  the  formality  or  publicity  of  the  com- 
mon-law conveyances,  nor  was  it  recordable  under  the  Statute  of  En- 
rollments. This  was  the  method  of  conveying  known  as  the  lease 
and  release.  The  lease  and  release  has  already  been  mentioned  as 
one  method  of  conveying  used  at  common  law.  When  so  used,  how- 
ever, it  was  necessary  that  the  lessee  should  enter  the  land  before  he 
could  take  a  release.  The  new  method  under  the  statute  of  uses  was 
for  A.  to  execute  to  B.  a  bargain  and  sale  for  one  year  of  the  land 
in  question  which  it  was  desired  to  convey.  Since  the  statute  of  en- 
rollment applied  only  to  bargains  and  sales  of  freehold  interests,  the 
bargain  and  sale  for  a  year  did  not  require  recording.  It  had  been 
held  in  Lutwitch  v.  Mitton  ^  that  a  bargain  and  sale  of  this  kind  gave 
the  bargainee  by  virtue  of  the  statute  a  legal  title  without  his  making 
any  entry  on  the  land.  Thus  having  a  legal  title,  by  operation  of 
.  law,  he  could  immediately  take  a  common  law  release  in  fee  of  the 
yf  grantor's  reversionary  interest.    This  became  ultimately  the  commonly 

*'*^'J^  ^/  used  method  of  conveying  title;  the  bargain  and  sale  for  a  year  and 
./-c-yV  jfeC^  the  release  ordinarily  being  written  on  the  same  piece  of  paper,  the 
^  release  being  dated  one  day  later  than  the  bargain  and  sale. 

These  two  methods  of  conveying — that  is,  the  common-law  meth- 
od, with  a  declaration  of  the  use  to  the  person  taking  the  legal  title 
under  the  conveyance,  and  conveyances  operating  either  in  whole  or 
in  part  under  the  Statute  of  Uses — continued  to  exist  side  by  side 
till  the  19th  century.  For  the  first  few  years  after  the  Statute  of 
Uses,  the  courts  were  extremely  narrow  in  their  attitude,  and  if  a 
conveyance  was  intended  to  operate  as  a  conveyance  at  common  law 
and  was  for  some  reason  ineffective  as  such,  they  would  refuse  to 
give  it  any  efficacy  under  the  Statute  of  Uses  even  though  all  the  ele- 
ments of  a  good  conveyance  under  the  statute  existed.*  Later  on, 
their  attitude  changed,  and  the  rule  was  definitely  established  that,  if 
a  conveyance  could  be  made  to  operate  either  at  common  law  or  un- 
der the  Statute  of  Uses,  it  would  be  held  effective.'' 

The  most  far-reaching  effect  of  the  Statute  of  Uses  is  to  be  found 
in  the  changes  that  were  produced  in  the  law  relating  to  estates.  It 
is  to  be  borne  in  mind  that  the  statute  operated  to  transform  into  legal 
estates  those  estates  which  prior  thereto  the  chancellor  would  have 
protected  as  equitable  estates.     In  deciding  what  interests  he  would 

6  Cro.  Jac.  604  (1620). 

«  Sep  Callard  v.  Callard,  Moore,  687  (1593). 

7  See  Roe  v.  Tranmer,  2  Wils.  75  (1757).  Compare  Taylor  v.  Vale,  Cro. 
Eliz.  166  (15S9). 


Ch.  G)  USES    AND   TRUSTS  79 

SO  protect,  the  chancellor  did  not  feel  himself  bound  by  the  strict 
common-law  rules  which  have  been  discussed  in  considering  the  meth- 
od of  creating  estates  at  common  law  and  the  kinds  of  estates  that 
could  be  created.  To  a  certain  extent  when,  after  the  Statute  of  Uses, 
these  former  equitable  estates  now  became  legal  estates,  and  so  were 
brought  within  the  cognizance  of  the  common-law  courts,  these  courts 
did  apply  the  stricter  common-law  principles.  Thus  the  phrase  "to 
his  heirs"  was  necessary  to  create  a  fee  simple.  A  mere  declaration 
of  the  use  to  B.  would  result  in  giving  him  only  a  life  estate,  and  a 
limitation  of  the  use  to  B.  and  the  heirs  of  his  body,  after  the  Stat- 
ute of  Uses,  would  give  him  a  legal  estate  in  tail.'  In  general,  how- 
ever, the  law  courts  recognized  as  valid  legal  estates  those  limitations 
which,  prior  to  the  statute,  had  been  equitable  estates.  Certain  par- 
ticular cases,  however,  should  be  noticed.  If  A.  enfeoffed  B.  in  fee 
to  the  use  of  A.  for  life,  after  the  statute  A.  would  clearly  have  a 
legal  estate  for  life.  If  the  undisposed  of  residuum  of  the  use  was 
allowed  to  result  to  A.  in  fee,  this  would  give  him  a  reversion  in  fee 
which  would  swallow  up  and  destroy  his  life  estate  by  tlie  doctrine 
of  merger.  Consequently,  in  order  to  preserve  the  life  estate,  in  ac- 
cordance with  the  express  terms  of  the  creation  of  the  use,  the  court 
held  that  the  reversion  did  not  result  to  A,  in  fee,  but  that,  after  A.'s 
death,  B.  had  a  legal  remainder  in  fee.  On  the  other  hand,  if  A. 
enfeoffed  B.  in  fee  to  the  use  of  A.  in  tail,  which  after  the  statute 
would  give  him  a  legal  estate  in  tail,  the  use  was  also  held  to  result  to 
him  in  fee;  De  Donis  in  this  case  keeping  the  two  estates  apart,  so 
that  the  common-law  doctrine  of  merger  had  no  application.  Doubt 
was  also  raised  in  the  case  of  Shortridge  v.  Lamplugh  ^  whether  or 
not  the  use  would  result  on  a  lease  and  release  in  fee.  It  seemed, 
however,  finally  to  be  settled  that  there  was  no  essential  difference 
between  this  method  of  conveying  and  any  other,  and  that  a  use 
would  result  in  this  case  where  it  would  result  in  the  case  of  a  con- 
veyance by  livery. 

It  is  in  the  law  relating  to  the  creation  of  future  estates  that  the 
greatest  changes  in  the  law  were  produced  by  the  Statute  of  Uses. 
The  common-law  rules  with  respect  to  the  creation  of  common-law 
remainders  have  already  been  stated.  Under  the  Statute  of  Uses  the 
possibilities  in  the  creation  of  future  estates  were  greatly  enlarged. 
These  changes  can  best  be  illustrated  by  examples : 

If  A.  enfeoffs  B.  in  fee  from  the  1st  of  January  next,  this  convey- 
ance would  be  bad  at  common  law,  for  the  reason  that  a  freehold 
estate  of  possession  cannot  be  created  to  begin  in  futuro.  However, 
A.  could  bargain  and  sell  the  use  of  his  land  to  B.  in  fee  or  in  tail 
or  for  life,  to  begin  two  years  from  date,  or  on  A.'s  death,  or  when  B, 

8  See  Abraham  v.  Twigg,  Cro.  Eliz.  478   (159G) ;  Egerton's  Case,  Cro.  Juc. 
525  (1619) ;  Broughton  v.  Langley,  2  Salk.  679  (1703). 
»2  Salk.  678   (1702). 


80  USES   AND  TRUSTS  (Ch.  G 

paid  A.  ilOO.  The  chancellor  would  have  enforced  any  one  of  these 
uses  before  the  statute,  and  after  the  statute  they  were  all  good  legal 
estates.  Both  the  use  and  the  complete  legal  title  would  remain  in  A. 
until  the  contingency  happened  upon  which  they  were  to  go  to  B. ; 
that  is,  A.'s  estate  would  not  be  a  particular  estate,  but  would  be  the 
complete  fee  of  the  land,  subject  to  the  estate  over  in  favor  of  B. 
This  estate  in  B.  is  what  is  technically  known  as  a  springing  use; 
the  use  comes  into  being  without  there  having  been  created  any 
preceding  use  estate.  The  same  general  principle  applied  to  the  cre- 
ation of  uses  raised  on  transmutation  of  possession,  as  where  A. 
enfeoffs  X.  in  fee  to  the  use  of  B.  two  years  from  date,  etc. 

Another  estate  which  could  be  created  under  the  Statute  of  Uses, 
which  was  impossible  at  common  law,  was  a  limitation  after  a  fee 
to  a  third  person.  Thus  A.  could  bargain  and  sell  to  B.  in  fee,  and 
if  B.  died  without  issue  living  at  his  death,  or  if  C.  paid  B.  ilOO., 
then  to  C.  in  fee.  This  case,  where  the  second  use  estate  operates  to 
cut  off  the  first  use  estate,  is  technically  known  as  a  shifting  use. 
Here,  also,  the  same  set  of  estates  may  be  created  by  a  use  raised  on  a 
common-law  conveyance,  as  where  A.  enfeoffs  X.  in  fee  to  the  use  of 
B.  in  fee,  with  the  hmitation  over  to  C.  in  fee,  as  well  as  on  a  bargain 
and  sale. 

In  connection  with  this  limitation,  mention  should  be  made  of  the 
highly  technical  doctrine  of  scintilla  juris.  In  the  case  last  put,  since 
the  limitation  of  the  use  was  to  B.  in  fee,  when  that  was  executed  by 
the  statute  that  would  seem  to  carry  from  X.,  the  feoft'ee  to  uses, 
all  his  legal  estate.  If  later  the  contingency  was  satisfied  by  C,  so 
that  the  use  was  shifted  to  him,  the  question  arose  as  to  what  seisin 
that  use  was  based  on.  The  theory  was  then  evolved  that,  despite 
>  the  fact  that  X.'s  entire  seisin  had  been  carried  to  B.  to  serve  the 
first  use,  there  still  remained  in  X.  a  possibility  of  a  right  sufficient 
to  carry  the  second  use  to  C.  This  possibility  of  right  received  the 
name  "scintilla  juris."  The  only  practical  aspect  of  the  question  lay 
in  the  possibility  of  B.'s  being  able  to  deal  with  the  scintilla  juris  in 
such  a  way  as  to  prejudice  C.'s  rights.  The  whole  doctrine  was  abro- 
gated by  statute,  and  C.'s  rights  definitely  put  beyond  possibility  of 
prejudice.^" 

At  common  law,  as  has  already  been  pointed  out,  it  was  impossible 
to  create  a  contingent  remainder  unsupported  by  a  preceding  vested 
estate  of  freehold.  Under  the  statute,  however,  A.  might  bargain  and 
sell  to  B.  for  ten  years,  and  then  to  the  son  of  B.  in  fee,  even  though 
B.  had  no  son  at  the  date  of  the  bargain  and  sale.  Although  one  or 
two  old  cases  intimated  that  the  estate  in  A.'s  son  would  be  bad,  it 
is  probably  good.^* 

10  23  &  24  Vict.  c.  38,  §  7. 

11  See  Gray,  Rule  against  Perpetuities  (3a  Ed.)  §§  58-60. 


Ch.  6)  USES  AND  TRUSTS  81 

Another  possibility  in  the  creation  of  future  estates,  that  takes  its 
origin  in  the  Statute  of  Uses,  is  the  doctrine  of  powers.  Since  the 
legal  title  is  carried  to  the  use  estate,  when  the  use  estate  comes  into 
being,  it  is  possible  to  create  tlie  following  limitation:  A.  may  bar- 
gain and  sell  to  C.  for  life,  and  then  to  such  person  as  X.  may  ap- 
point, and,  when  X.  does  appoint,  his  appointee  will,  by  virtue  of  the 
statute,  have  his  use  estate  executed  into  a  corresponding  legal  estate. 
Here,  as  before,  the  same  result  may  be  achieved  by  the  raising  of 
'the  use  upon  a  common-law  conveyance. 

At  common  law  it  is  impossible  for  a  man  to  convey  to  himself. 
Under  the  Statute  of  Uses  A.  may  enfeoff  B.  in  fee  to  the  use  of 
A.  for  life,  which  will  result  in  giving  A.  a  life  estate  under  the  con- 
veyance, as  a  purchaser. 

These  are  but  illustrations  of  the  possibilities  of  creating  future 
estates  under  the  statute.  In  every  case  where  the  use  is  undisposed 
of,  either  by  declaration  or  consideration  or  tenure,  it  results  to  the 
creator  of  the  use,  and  always  in  fee,  although,  of  course,  it  may  later 
be  cut  off  by  some  expressly  declared  use.  A  case  that  is  not  ex- 
pressly covered  by  the  statute  is  the  following:  A.,  a  tenant  for  Hfe, 
bargains  and  sells  to  B  in  fee.  In  this,  case  it  will  be  noticed  that 
the  legal  estate,  A.'s,  out  of  which  the  use  estate  in  B.  is  created,  is 
smaller  than  is  the  estate  in  B.  The  utmost  that  the  statute  can  do 
is  to  carry  A.'s  life  estate  to  B.  Consequently  B.  can  get  a  fee  only 
for  the  life  of  A. 

Mention  has  been  made  in  another  connection  of  the  destructibil- 
ity  of  contingent  remainders,  except  where  preserved  by  trustees  or 
protected  by  statutory  enactment.  In  this  regard  there  was  a  marked, 
difference  between  contingent  remainders  and  springing  or  shifting 
uses  and  executory  devises.  Regardless  of  what  might  be  done  with 
the  particular  estate,  when  the  contingency  happened  upon  which  the 
declared  use  was  to  come  into  being,  the  legal  estate  was  thereby 
automatically  created  by  action  of  the  statute.  This  nondestructibil- 
ity  of  estates  created  under  the  Statute  of  Uses  led  to  the  growth  of 
a  new  doctrine  in  the  law  of  property,  the  so-called  rule  against  per- 
petuities. The  situation  that  it  was  designed  to  reach  can  best  be 
shown  by  a  concrete  illustration:  Suppose  A.  enfeoffs  B.  in  fee  to 
the  use  of  C.  in  fee,  but  if  C.'s  direct  descendants  ever  become  ex- 
tinct then  to  the  then  oldest  living  descendant  of  D.  in  fee.  It  is 
evident  that  in  this  case  the  estate  after  C.'s  may  not  vest  until  the  lapse 
of  an  indefinitely  long  time.  Consequently,  since  a  shifting  use  is 
indestructible,  it  is  evident  that  in  no  way  can  a  clear  title  be  ob- 
tained to  this  land.  Such  a  situation,  and  there  are  many  others, 
variations  of  the  same  principle,  is  open  to  most  serious  objections 
upon  the  grounds  of  public  policy.  Beginning  with  the  17th  century, 
the  doctrine  was  evolved,  and  now  is  definitely  recognized  which  may 
be  stated  as  follows:  "No  interest  is  good  unless  it  must  vest,  if  at 
Big.Int. — 6 


82  USES    AND   TRUSTS  (Ch.  6 

all,  not  later  than  twenty-one  years  after  some  life  in  being  at  tlie 
creation  of  the  interest."  ^* 

We  now  come  to  a  consideration  of  cases  not  covered  by  the  statute. 

The  statute  in  terms  purported  to  apply  only  to  a  case  where  one 
person  was  seised  to  the  use  of  another.     Consequently,  if  A.,  a  ten-  ' 
ant  for  years,  bargains  and  sells  to  C,  or  if  A.,  the  owner  in  fee, 
leases  to  B.  for  years  to  the  use  of  C,  in  neither  case  is  C.'s  interest  af-  '' 
fected  by  the  statute.     His  rights,  after  the  statute,  as  before,  are 
purely  equitable.  ' 

A.  enfeoffs  B.  in  fee  to  the  use  of  B.  in  fee.  B.'s  estate  in  this 
case  is  not  created  by  the  statute,  but  by  virtue  of  the  common-law 
conveyance,  and  the  declaration  of  the  use  in  B.  merely  prevents  the 
use  resulting  to  A.^^  If,  on  the  other  hand,  A.  enfeoffs  B.  in  fee  to 
the  use  of  B.  and  C.  in  fee,  B.  as  well  as  C.  in  this  case  gets  his  es- 
tate by  operation  of  the  statute.^* 

In  Cooper  v.  Franklin  ^^  it  was  held  that  it  was  impossible  to  raise 
a  use  on  an  estate  tail;  the  reason  for  this  being  that  De  Bonis 
definitely  fixed  the  beneficial  interest  in  the  tenant  in  tail,  and  it  was 
impossible  to  raise  a  use  in  contravention  to  the  purpose  of  that 
statute. 

Another  use  not  executed  by  the  statute  is  the  active  use.  Thus  A. 
enfeoffs  B.  in  fee,  to  sell  the  land  in  question  and  pay  the  proceeds 
to  C,  or  to  collect  the  rents  and  profits  and  pay  them  to  C.  Since 
in  these  cases  the  feoffee  to  uses  had  active  duties  to  perform,  and  was 
not  merely  to  serve  as  a  passive  conduit  to  uses  to  C,  the  case  was 
not  regarded  as  coming  within  the  operation  of  the  statute.  Conse- 
quently C.'s  rights  still  remained  equitable.^® 

The  final  case  of  the  use  unexecuted  by  the  statute  is  the  use  on  the 
use,  as  where  A.  enfeoffs  B.  in  fee,  to  the  use  of  C.  in  fee,  to  the  use 
of  D.  in  fee,  or  A.  bargains  and  sells  to  C.  in  fee,  to  the  use  of  D.  in 
fee.  Before  the  passage  of  the  Statute  of  Uses  the  chancellor  would 
have  enforced  only  the  first  use  in  C. ;  the  use  over  to  D.  being  re- 
garded as  repugnant  to  the  already  declared  use  in  C,  and  therefore 
void.  The  same  situation  obtained  after  the  statute;  since  C.'s  use 
was  the  only  one  that  the  chancellor  would  have  recognized,  C.  was 
regarded  as  having  the  legal  estate  after  the  statute,  and  the  use  to 
D.  was  disregarded.^^  Care  should  be  taken  to  distinguish  between 
a  use  on  a  use  and  a  shifting  use.  In  the  former  case  the  attempt  is 
to  make  the  first  cestui  que  use  hold  contemporaneously  for  the  ben- 
efit of  the  second  cestui  que  use.     In  the  second  case  the  attempt  is 

12  Gray,  op.  cit.  §  201. 

13  See  Doe  d.  Lloyd  v.  Passingham,  6  Barn.  &  O.  305  (1827). 
1*  See  Samme's  Case,  13  Co.  54  (1609). 

15  Cro.  Jac.  400  (1616). 

18  Nevil  V.  Saunders,  1  Vern.  415  (1686). 

iiTyriel's  Case,  Dyer,  155a  (1557). 


Ch.  6)  USES   AND  TRUSTS  83 

to  make  the  interest  of  the  second  cestui  que  use  come  in  on  a  certain 
contingency  and  cut  off  the  interest  of  the  first  cestui  que  use. 

The  interest  of  the  second  cestui  que  use  in  the  case  of  the  use  on 
the  use  was  apparently  entirely  ignored  both  by  the  law  courts  and 
by  the  chancellor  for  about  100  years  after  the  passage  of  the  Stat- 
ute of  Uses.  By  the  middle  of  the  17th  century,  however,  the  doc- 
trine that  a  use  on  a  use  could  not  be  enforced  was  regarded  as  a  mere 
legal  technicality,  and  the  chancellor  began  to  protect  in  equity  the 
interest  of  the  second  cestui.  With  this  recognition  by  the  chancellor 
of  the  possibility  of  an  equitable  estate,  distinct  from  and  imposed 
upon  the  legal  estate  in  tlie  land,  and  protected  by  equitable  processes, 
the  situation  was  brought  back  in  many  respects  to  substantially  what 
it  was  before  the  passage  of  the  Statute  of  Uses.  The  statement  of 
the  interest  of  the  old  cestui  que  use,  the  only  one,  as  has  been  al- 
ready said,  that  the  chancellor  would  have  recognized,  having  become 
by  statute  and  the  passage  of  time  merely  a  step  in  the  creation  of  a 
legal  estate,  this  legal  estate,  in  turn,  becomes  the  foundation  for  a 
new  equity.  It  is  in  this  connection  that  the  statement  has  been  made 
that  the  total  effect  of  the  Statute  of  Uses  was  to  add  three  words 
to  a  common-law  conveyance. 

This  is  the  beginning  of  the  modem  law  of  trusts.  The  only  dif- 
ference is  that  the  feoffee  to  uses,  or  holder  of  the  legal  estate,  is  now 
called  a  trustee,  and  the  old  cestui  que  use,  or  holder  of  the  equitable 
estate,  is  now  called  the  cestui  que  trust.  The  doctrines  of  tlie 
modern  law  of  trusts,  while  bearing  a  general  resemblance  to  those 
of  the  old  law  of  uses,  differ  widely  therefrom  in  other  regards,  and 
form  a  large  and  independent  branch  of  modern  law.^* 

18  On  uses  subsequent  to  the  statute  of  uses  see  2  Bl.  op.  cit.  333-340; 
Challis,  op.  cit.  386-392;  Digby,  op.  cit.  ch.  VII.  Leake,  op.  ciL  82-96;  Wil- 
liams, op.  cit.  170-179,  366-371. 

See,  in  general,  on  uses,  Ames,  21  Harv.  Law  Rev.  261, 


INDEX 


[the  figures  refeb  to  pages] 


ABATEMENT,  58  n. 

ALIEXATION, 

By  subinfeudation,  11,  17,  IS. 

By  substitution,  11. 

Restricted  by  De  Donis,  22.  23. 

By  Quia  Emptores,  12,  13. 
Under  the  statute  of  uses,  77-79. 

ALLODIAL  OWNERSHIP,  17. 

ATTORNMENT, 

Abolition  of,  45. 
Requirement  of,  7,  45. 

BURGAGE  TENURE,  9. 

CONDITIONAL  LIMITATIONS,  43. 

CONVEYANCE, 
See  Alienation. 

COPYHOLD  TENURE,  10. 
See  Servile  Tenants. 

CORPOREAL  AND  INCORPOREAL  RIGHTS,  36,  31. 

CURTESY, 

See  Life  Estates. 

DEFORCEMENT,  58  n. 

DESCENT  AND  PURCHASE,  20. 

DISCONTINUANCE,  58  n. 

DISSEISIN,  REMEDIES  FOR,  59,  60. 
What  is,  58. 

DOWER, 

See  Life  Estatea 

EJECTMENT, 

Action  of,  60-64. 

ENTRY, 

Right  of,  43. 
EXCHANGE, 

Conveyance  by,  47. 

FEE   CONDITIONAL,  22. 

FEB  DETERMINABLE,  23. 

FEE  SIMPLE, 

How  created,  20,  21. 
Origin  of,  19,  20. 
Subinfeudation  of,  11,  13,  17,  18. 

BiG.lNT.  (85) 


86  INDEX 

[The  figures  refer  to  pages] 

FEE  TAIL, 

Methods  of  barring,  24,  25. 
Orisin  of,  23. 
Uuited  States,  in,  25. 

FEOFFMENT, 

Charter  of,  34. 
Conveyance  by,  34,  35. 
See  Seisin. 

FINE. 

Conveyance  by,  47. 
Entail  barred  by,  24. 
Feudal  incident  of,  7. 

FRANKALMOYN  TENURE,  10. 

FREEHOLD, 

Meanings  of,  30. 


GAVELKIND  TENURE,  9. 

INCORPOREAL  HEREDITAMENTS.  44. 
•  See  Corporeal  and  fncorporeal  Rlghta 

INTRUSION,  58  n. 


JOINT  OWNERSHIP, 

Communitj'  property,  56. 
Coparceny,  53,  54. 
Joint  tenancy,  49-53. 
Tenancy  by  entirety,  56. 
Tenancy  in  common,  55,  58. 

JOINT  TENANCY. 
How  created.  49. 
Properties  of,  50-62. 
Termination  of,  52,  53. 

LEASE. 

How  created,  34,  35. 

See  Tenant. 

LEASE  AND  RELEASE,  78. 

LIFE  ESTATES, 
Curtesy,  27. 
D'autre  vie,  26. 
Dower,  28-30. 
General  occupant  In,  26w 
Special  occupant  In,  26. 
Varieties  of,  26. 

LIMITATION, 
Words  of,  20. 

■  LORD  AND  TENANT,  3. 


MANOR, 

Divisions  of,  8. 
Jurisdiction  of,  9. 

MERGER,  47. 


INDEX  8T 

[Tbe  figures  refer  to  pagea] 


MILITARY  TENURE, 
Abolition  of,  14-17. 
Incidents  of, 

Aids,  4. 

Esclieat,  7. 

Fines.  6. 

Marriage,  6. 

Primer  seisin,  5. 

Relief,  5. 

Wardship,  5. 
In  United  States,  17. 

NORMAN  CONQUEST, 
Effect  of,  1,  2. 

PERPETUITIES, 

Rule  against,  81,  82. 

POSSESSION. 

Distinguished  from  seisin,  32,  331 
Transfer  of,  34,  35. 

REAL  PROPERTY  LAW, 
Origin  of,  1. 

RECOVERY, 

Common, 

Bars  entail,  24. 

Form  of  conveyance  by,  47. 

RELEASES,  46. 

REMAINDERS, 

Contingent,  39-41. 
Destructability  of,  41,  42,  47. 
Transfer  of,  44,  45. 
Trustees  to  preserve,  42. 
Vested,  38,  39. 

REVERSIONS,  38,  39. 

SEISIN, 

Distinguished  from  possession,  32,  3SL 

Meaning  of,  32,  33. 

Transfer  of,  34,  35,  38,  39,  41,  42. 

SERJEANTY,  7,  10. 

SERVILE  TENANTS,  9,  10. 
See  Copyhold. 

SOCAGE  TENURE,  8,  9. 

STATUTE  OF  USES,  72-75. 

Conveyances  under,  75,  77-79. 
Estates  created  under,  79-81. 
Relation  of,  to  law  of  trusts,  83. 
Scintilla  juris,  under,  SO. 
Uses  not  executed  by,  82,  S3. 
See  Uses. 

SURRENDER,  46.  47. 

TENANT", 

At  sufferance,  32. 
At  will,  32. 
For  years,  31. 
From  year  to  year,  32. 


S8  INDEX 

[The  figures  refer  to  pages] 

TENURES, 

Abolition  of,  14-17. 
Burgage,  9. 
Copyhold,  10. 
Frnnkaluioyn,  10. 
rTavelkind,  9. 
Military,  4-7. 
Socage,  8,  9. 

United  States,  in,  17,  18. 
Varieties  of,  3. 

TRUSTS, 

Relation  of,  to  uses,  83. 

USES, 

Bargain  and  sale  of,  70. 

Cbancellor's  protection  of,  67,  68.- 

Consideration,  when  necessary.  69,  70. 

Donee  of  feoffee,  bound  by,  G9. 

Feoffee  to,  bound  by,  67,  68. 

Feudal  obligations,  evaded  by,  66,  67. 

Heir  of  feoffee,  bound  by,  67. 

Mortmain  statutes,  evaded  by,  65,  66. 

Not  executed  by  the  statute,  82. 

On  a  use,  82,  83. 

Purchaser  from  feoffee,  when  bound  by,  69. 

Raised  by  parol.  71,  75,  76.  ' 

Resulting,  69,  70. 

Raised  without  transmutation  of  possession,  70,  77.  78. 

Statutes  affecting,  65,  Magna  Carta.  §  34 :  66.  15  Rich.  II,  c.  5 :  71.  1  Rich. 

Ill,  c.  1 ;    72,  27  Hen.  VIII,  c.  10;   76,  29  Car.  II,  c.  3,  §  7;   76,  27 

Hen.  VIII,  c.  16. 
See  Statute  of  Uses. 

WILL  OF  REAL  ESTATE. 

Not  allowed  at  common  law,  47. 
Power  to  make,  given  by  statute,  48. 


WBBT  PUBLISHING  CO.,  PRINTERS,  ST.  PAUL,  HIHM. 


CASES 


ON 


RIGHTS  IN  LAND 


BY  HARRY  A.  BIGELOW 

PEOFESSOE  OF  LAW  IN  THE  UNIVERSITY  OF  CHICAGO 


AMERICAN  CASEBOOK  SERIES 

WILLIAM  R.  VANCE 

GENERAL   EDITOR 


ST.    PAUL 

WEST  PUBLISHING  COMPANY 
1919 


COPYBIGHT,  1919 
BY   . 

WEST   PUBLISHING  COMPANY 

(BiG.RlGHTS) 


TO  MY  COLLEAGUES 

OF  THE 

LAW  FACULTY 

(iU)* 


AUTHOR'S  PREFATORY  NOTE 


The  title  of  this  volume  is  at  best  an  approximation.  The  powers 
and  immunities  that  form  so  important  a  part  of  rights  relating  to 
land  are  touched  on  only  to  a  slight  extent;  for  the  most  part  those 
aspects  of  property  rights  are  taken  up  elsewhere.  To  attempt  to 
catalogue  in  detail  the  privileges  that  the  owner  of  land  has,  whether 
his  ownership  be  absolute  or  qualified,  would  be  to  attempt  a  list  of 
human  activities  which  tal<e  place  on  the  soil ;  to  attempt  to  consider 
the  relation  between  these  privileges  and  the  right  not  to  be  disturbed 
in  the  enjoyment  of  them,  or  the  further  question  as  to  how  far  these 
privileges  may  be  abridged,  is  the  proper  field  for  a  work  on  Juris- 
prudence or  Constitutional  Law.  The  aim  of  the  present  volume  is 
more  limited.  It  is  to  present  first,  the  law  of  the  more  important 
rights  that  are  normal  incidents  of  the  ownership  of  soil ;  and,  sec- 
ond, the  law  of  certain  more  or  less  stereotyped  forms  of  rights  and 
privileges  with  respect  to  land  in  which  a  third  person  has  an  interest, 
either  absolute  or  qualified.  Hence  the  division  of  the  volume  into 
two  parts :  Rights  Incidental  to  Ownership,  and  Rights  in  the  Land 
of  Another. 

How  far  cases  in  equity  ought  to  be  included  is  a  question  upon 
which  reasonable  men  may  well  differ.  In  the  present  collection  the 
aim  has  been  this:  Where  the  courts  of  equity  have  developed  a 
substantive  law  peculiar  to  themselves,  as  in  the  enforcement  of  con- 
tracts aft'ecting  the  use  of  land  and  in  waste,  the  attempt  has  been 
made  to  show  the  development  of  those  doctrines  witla  the  same  full- 
ness as  any  other  branch  of  the  law  within  the  scope  of  the  volume. 
Where  the  courts  of  equity  have  merely  protected  the  owner  in  rights 
that  a  common-law  court  would  also  enforce,  the  aim  has  been  to 
indicate  the  peculiarities,  if  any,  of  the  protection  given  by  a  court 
of  equity;  but  not  to  go  into  the  question  of  what  prerequisites  such 
as  the  establishment  of  a  rigljt  at  law,  or  repeated  violations  of  the 
right  or  similar  matters,  must  exist  before  a  court  of  equity  will  act. 
Nor  has  it  seemed  necessary,  in  dealing  with  the  extent  to  which 
equity  would  act,  to  cover  all  aspects  of  equitable  relief  in  each  topic 
taken  up  in  the  volume.  The  considerations  that  do  or  do  not  affect 
a  court  of  equity  in  giving  relief  in  some  situations  (as  for  example, 
the  doctrine  of  balance  of  convenience  in  nuisances),  must  be  under- 
stood as  applicable,  mutatis  mutandis,  to  other  situations  covered  by 
the  volume. 

The  traditional  and  almost  universal  method  of  dealing  with  the 
subject-matter  of  this  volume  and  that  of  Professor  Aigler  is  to  take 
up  the  former  first.  Consequently  the  numerical  order  of  the  volumes 
has  naturally  and  properly  been  arranged  with  this  custom  in  mind, 
and  in  the  present  volume  the  attempt  has  been  made  to  have  the 
material  in  a  shape  available  for  first  year  students. 

(V) 


VI  AUTHOR'S   PREFATOEY   NOTE 

In  the  statement  that  the  teaching  of  the  subject-matter  of  Volume 
II  before  that  of  Volume  III  is  traditional,  there  is  no  implication 
that  this  order  has  only  tradition  to  justify  it.  At  the  same  time 
it  is  the  opinion  of  the  editor  of  the  present  volume  that,  while  the 
subject-matter  of  both  Volume  II  and  Volume  III,  as  well  as  that  of 
the  other  volumes  in  this  series,  must  of  course  be  taken  up  at  one 
time  or  another,  if  the  student  is  to  have  an  adequate  understanding 
of  the  whole  field  of  property  law,  there  is  much  to  be  said  in  favor 
of  an  order  which  combines  the  subject-matter  of  Volume  III,  with 
certain  introductory  material,  as  a  first-year  course,  and  postpones 
the  subject-matter  of  Volume  II  to  the  second  year.  Few  teachers 
of  Real  Property  will  plunge  beginning  students  at  once  into  the 
cases  of  either  Volume  II  or  Volume  III.  There  must  be  some  intro- 
duction to  this  general  subject.  Whichever  order  is  adopted,  the 
starting  point  will  he  the  material  covered  in  this  series  under  the 
title  "Introduction  to  the  Law  of  Real  Property,"  either  in  the  form 
there  given  or  in  some  other  form.  The  most  important  topics  dealt 
with  in  this  introductory  matter  are  disseisin,  feoffments,  grants,  es- 
tates, and  the  doctrine  of  uses.  After  this  material  has  been  dealt 
with,  if  it  is  to  be  really  assimilated,  and  correlated  with  living  law, 
so  as  to  be  more  than  a  more  or  less  .nebulous  acquaintance  with  legal 
antiquities,  the  transition  must  be  to  branches  of  the  law  Avhere  the 
information  that  has  been  acquired  can  be  kept  alive  and  steadily 
made  use  of,  either  by  comparison,  or  by  analogy,  or  as  furnishing  a 
historical  explanation  for  modern  doctrines.  It  is  the  belief  of  the 
writer  that  this  correlation  and  vivifying  of  the  law  is  more  likely  to 
be  accomplished  by  the  use'  of  a  casebook  that  deals  with  adverse 
possession,  estates  and  the  form  and  effect  of  a  modern  conveyance, 
rather  than  a  casebook  that  deals  with  easements,  covenants,  and 
rents.  Furthermore,  while  one  cannot  be  dogmatic  on  the  point, 
questions  of  the  making  of  deeds,  of  the  relation  of  landlord  and 
tenant  involved  in  leases  and  surrenders,  and  of  adverse  possession, 
seem  to  be  of  a  sort  more  likely  to  have  come  within  the  experience 
of  the  beginning  law  student  than  questions  of  easements,  profits,  and 
restrictive  covenants. 

'So  far  as  the  intrinsic  difficulty  of  the  subject-matters  of  the  two 
volumes  is  concerned,  both  present  problems  of  law  that  are  not  easy. 
If  Volume  II  has  covenants  and  rents.  Volume  III  has  reservation 
of  easements  and  title  by  estoppel.  But  here,  too,  on  the  whole,  the 
subject-matter  of  Volume  III  seems  more  adapted  to  first-year  work 
than  that  of  Volume  II. 

No  person  who  has  had  the  advantage  of  Professor  Gray's  teach- 
ings and  writings  can  fail  to  acknowledge  the  influence  and  help 
that  they  furnish.    The  author  is  glad  to  make  that  acknowledgment. 

Harry  A.  Bigei^ovv. 

The  University  of  Chicago  Law  ScnooL, 
July  17,  1919. 


TABLE  OF  CONTENTS 


PART  I 
Rights  Incidental  to  Possession 


CHAPTER  I  Page 

Possession    1 

CHAPTER  II 
AlB  11 

CHAPTER  III 
La^d    36 

CHAPTER  IV 
Stbeaus    54 

CHAPTER  V 

SUBFACE     WATEBS     93 

CHAPTER  VI 
Undebqbound  Watebs   121 

CHAPTER  VII 
Rights  or  Revebsionebs 140 


PART  ir 
Rights  in  the  Land  of  Another 

CHAPTER  1 
Pbofixs 153 

CHAPTER  II 
Section  Easements 

1.  General  Principles  of  Easements ISO 

2.  Scope   of   Easements 201 

3.  Easements  in   Structures 232 

4.  Easements  in  Artificial  Water  Courses 253 

5.  Afiirraative  Easements 2GS 

6.  Extinguishment  of  Easements 277 

CHAPTER  III 
LacENSES    303 

BlQ.RlQHTS  (vil) 


Vlll  TABLE   OF  CONTENTS 


CHAPTER  IV 

Legal  Enforcement  of  Covenants  Running  with  the  Land 

Section  Page 

1.  As  between  Landlord  and  Tenant 338 

I.     Before  the  Statute  of  32  Henry  VIII 338 

II.     Under  the  Statute  of  32  Henry  VIII 339 

(A)  The  Statute 339 

(B)  Formalities 341 

(C)  What  Covenants  Run 352 

(a)  Covenants  by  the  Lessee 352 

(b)  Covenants  by  the  Lessor 373 

(D)  Assignments    383 

(a)  General   Principles 383 

(b)  Assignment  of  Part  Interests 395 

IIL     Not  Under  the  Statute  32  Henry  VIII 410 

2.  As  between  Owners  in  Fee 427 

I.     Agreements  under  Seal 427 

(A)  Formalities    427 

(B)  What  Covenants  Run 446 

(C)  Party  Wall  Covenants 471 

II.     Agreements  not  Under  Seal 489 

CHAPTER  V 

Equitable  Enforcement  of  Agreements  Running  with  the  Land 

1.  ,  General  Principles 494 

2.  Running  of  Benefit  and  Burden 511 

CHAPTER  VI 

Rents 

1.  General  Nature  of  Rents 549 

2.  Suspension  and  Apportionment  of  Rents 575 

3.  Failure  to  Obtain  Possession 617 

4.  What  Payments  are  Rents 632 

CHAPTER  VII 
Waste 

1.  General  Principles  of  Waste 639 

2.  Remedies   for   Waste 677 

3.  Equitable   Waste , ■- 688 

CHAPTER  VIII 
Public  Rights 

1.  Streams    701 

2.  Highways 718 


TABLE  OF  STATUTES 


Page 

32  Hen.  VIII,  c.  34 339 

4  Anne,  c.  16,  §§  9,  10 552 

Rev.  St.  N.  Y.  p.  747,  §  22 558 

52  Hen.  Ill,  c.  23,  §  2 639 

6  Edw.  I,  c.  5 639 


Big. Eights  (ix) 


TABLE  OF  CASES 

[titles  of  cases  printed  hebein  are  set  in  ordinary  type,     cases  cited  in 

footnotes  are  indicated  by  italics.     where  small  capitals 

are  used,  the  case  is  referred  to  in  the  text] 


Page 

V.  Coopor 565 

Abbot  V.  Weekly ISO 

Abbott  V.  Kansas  City,  St.  J.  d  C. 

B.  R.  Co 103 

Ackroyd  v.  Smith 185 

Acton  V.  Blundell 121 

Adams  v.  'Sable 4S2 

Adams  v.  Van  Alstyne 273 

Albright  v.  Cortright 717 

Aldritt  V.  Fleischauer 114 

Allcock  V.  Moorhouse 415 

Allen  V.  Culver 420 

Allen  V.  San  Jose  Land  d  Water 

Co 205 

Allen  V.  Seckham 495 

Ainci'ican  Strawboard  Co.  v.  Hal- 

deman  Paper  Co 355 

Ames  V.  Kendall 398 

Ames  V.  Shaic 22S 

Angus  v.  Dalton 33 

Anonymous    G7S 

Anonymous   Case ". .  690 

Applegate  v.  Franklin 99 

Ards  V.  Watkins 561 

Arnold  v.  Stecens 295 

Ashby  V.   Wilsoii 513 

Ashley   v.    Wolcott 96 

Atkins  v.  Boedman 223 

Atlanta,  K.  &  N.  R,  Co.  v.  McKln- 

ney   455 

Atlantic    Coast    Line    R.    Co.    v. 

Bunting 230 

' Attoe  V.  Heminings 404 

Attorncif  General  t'.  Conduit  Co.. .     41 

Attorney  General  v.  Williams 222 

Austerbcrry  v.  Oldham 462 

Avis  V.  Newman 661 

Bacon  v.  Sandbcrg 547 

Bagot  v.   Bagot 650 

Bailey  v.  Stephens 176 

'Bakeman  v.  Talbot. 227 

Baker  v.  Sebright 696 

Ball  v.  Herbert 705 

Ballard  v.  Dyson 205 

Ballard  v.   Titus 220 

Bally  v.  Wells 359 

Baltimore     City     v.     Fairfield 
Imp.  Co 22 


Baltimore  &  P.  R.  Co.  v.  Firru 
Baptist  Church 

Bamford  v.  Turnley 

Bank  of  British  North  America  v. 
Miller 

Bank  of  Pennsylvania  v.  Wise... 

Banning,  Case  of 

Barber  v.  Penley 

Barkley  v.  Wilcox.. 

Barnes  v.  City  of  London  K.  E. 
Co 

Barringer  v.  Virginia  Trust  Co.. . 

Barrington,  In  re 

Barroio  v.  Richard 

Barry  v.  EdlavUch 

Barton  ik  Slifer 

Baskerville  v.  Mayo 

Bass  V.  Rollins 

Bassett  v.  Salisbury  Mfg-.  Co.  . . 

Bateraan  v.  Hotchkin 

Bates  V.  Duncan 

Bates  v.  Inhabitants  of  West- 
bokough  

Baxter  v.  Taylor 

Beach  v.  Barons 

Beach  v.  Morgan 

Beach  V.  Sterling  Iron  d  Zinc  Co. 

Beal  v.  Boston  Car  Spring  Co. 

Bennett  v.  Bittle 

Berry  v.  Godfrey 

Bickford  v.  Parson 

Biddlc  V.  Hussman 

Bidivcll  V.  H olden 

Bingham  v.  Salene 

Bish  V.  Keeling 

Bitello  V.  Lipson 

Blatchford  v.   Cole 

Blewett  v.  Tbegonning 

Bliss  V.  Hall '. 

Bloeh  V.  I  sham .'.'..*. 

Bly  v.  Edison  Electric  Illumi- 
nating  Co 148, 

Boatman  v.  I^asley 

Bonomi  v.  Backhouse 

Boston  Ferrule  Co.  v.  Hills 

Boston  d  r.  R.  Corporation  v.  Do- 
hcrty  

Boichuy  V.  Richards 

Bowles  (LfCwis),  Case  of 


Pa?e 

19 
15 

197 
552 
184 
723 
103 

373 

464 

698 

525 

236 

547 

556 

610 

126. 

687 

316 


119 
140 
392 
717 

87 
572 
594 
237 
416 
587 
506 
163 
355 
225 
559 
179 

34 
475 

151 

187 

36 

29 

291 
242 
688 


BlG.RlGHTa 


(xi) 


xu 


TABLE   OF  CASES 


Page 

Bowlsby  V.   Speer 114 

Bradford  v.  Pickles 129 

Bradford  Oil  Co.  v.  Blair 352 

Brawley  v.  Wade. 559 

Krett  V.  Cumberland 383 

Beeweb  v.  Marshall 448 

Bretcer  v.  Marshall 510 

Brewster  v.  Kidgill 566 

Bristol  Hydraulic  Co.  v.Boyer. . .     93 
Beoadbent  t.  Ramsbotham.  ..  .96,  98 

Brock  v.  Dole 657 

Brodeb  v.  Saillaed 117 

Bronson  v.   Coffin 270 

Broiison  v.  Coffin 272 

Brooks  V.  Curtis 232 

Brown  v.  Chadbourne 701 

Brown  v.  Illius 134 

Brown  v.  Southern  Pac.  Co 442 

Browne  v.  Trustees  of  Methodist 
Episcopal  Church   in  City   and 

Precincts  of  Baltimore 295 

Bruley  v.  Garvin 316 

Buckworth  v.  Simpson  &  Benner  410 

Bulkley  v.  Dolhearc 686 

Burbank  v.  Pillsbury 439,  489 

Burr  V.  Maclay  Water  Go 129 

Bussman  v.  Gan-ster 635 

Butler  V.  Frontier  Telephone  Co.      3 
BuTLEB  V.  Kynneesley 697 

Cadwalader  v.  Bailey i  194 

'Caldwell  v.  Fulton 158 

Campbell  v.  Mesier 247 

Campbell  v.  Race 729 

Campbell  v.  Seaman 29 

C apron  v.  Greenway 302 

Carrell  v.  Read 592 

Cartwright,  In  re 661 

Castuer  v.   Riegel 273 

Chalmers  v.  Smith 667 

Chapman  v.  Smith 352 

Charless  v.  Rankin 49 

Chase  r.  Cram 184 

Chasemore  v.  Richards 33 

Chatficld  v.  Wilson 125 

Cheesehorough  v.  Green 242 

Chester  v.  Alker  &  Elmes 718 

Cibel  &  Hills,  Case  of 591 

Cincinnati,    H.    d    D.    R.    Co.    v. 

Wackier   232 

City  of  Canton  v.  Schock. 79 

City  of  Emporia  v.  Soden 83 

City  of  Mansfield   v.   Balliett    80 

City  of  Quincy  v.  Jones 53 

Claflin   v.  Carpenter 315 

Clapp  V.  Boston 337 

Clark  V.  McGee 525 

Clavebing  v.  Claveeing 651 

Clegg  v.  Hands 358 

Clement  v.  Wheeler 691 

Clinton  v.  Myers 77 

Clun,  Case  of 555 


Page 
Clun  V.  Fisher 558 

Cobb  V.  Bennett 709 

Cobb  V.  Johnson 418 

Cockson  V.  Cock 352 

Codman  v.  Evans 723 

CoiT  V.  Owenby 230,  231 

Cole  v.  Bellasis 557 

Cole   V.    Foxman 164 

Cole  V.  Green 642 

Cole  v.  Hughes 484 

Collins  V.   Chartiers    Valley   Gas 

Co 134 

Conduitt  V.  Ross 475 

Congham  v.  King 395 

Conner  v.  Woodfill 119 

Constantine  v.  Wake 638 

Consumers'     Gas     Trust     Co.     v. 

AmeT^an  Plate  Glass  Co 232 

Coolc  V.  Jones 379 

Cook  v.  Mayor  of  Bath 280 

Cook  v.  Steabns 315 

Cooke  v.  Chilcott 461 

Cooper  V.  Crabtree 144 

Copper  v.  Dolvin 119 

Cornish  v.  Stubbs 314 

Corporation  of  Birmingham  v.  Al- 
len        42 

Cotting  v.  Boston 243 

Countess  of  Salop  v.  Crompton . .  659 

Countryman  v.  Deck 505 

Crain  v.  Fox 280 

Crawford  v.  Krollpfeiffer 482 

Crawford  v.  RAifBO.  1 100 

Crescent  Co.  v.  Silver  King  Co. ...     10 

Cronin  v.  Watkins 343,  420 

Crossley     d     Sons,     Limited,     v. 

Ldghtoider    88 

Crowe  V.  Riley 355 

CuBiTT  V.  Porter 239 

Damren    v.     American    Light    & 

Power   Co 559 

Damron  v.  Justice 228 

Dana  v.   Valentine 35 

Davis  V.  Gilliam 646 

Davis  V.  Niagara  Falls  Toiccr  Co.  120 

Davis  V.  Tway 328 

Day  V.  Cato^i 252 

Demarest  v.  Willard 407 

Denman  v.  Prince 460 

Derby  (Earl  of)  v.  Ttiylor 396 

Devlin  v.   Snellenburg 143. 

Dewar  v.  Goodman 380 

Dickinson  v.  Baltimore 682^ 

Dill  V.  Board  of  Education  of  City 

of  Camden 295 

Dillman  v.  Hoffman 282 

Dix  V.  Jaquay 676 

Doe  V.  Spry 355 

Doe  v.  Wood 100 

Doe  V.  Wood 157 

Doe  d,  Bish  v.  Keeling 355 


TABLE   OP  CASES 


XUl 


Page 

Doherty  v.  AUman 682 

Dolph  V.  Barry 609 

Dooly  V.  Stringham 658 

Dority  v.  Dunning 302 

Dorr  V.  llarkncss 672 

Douglas  V.  Coonley 243 

Dowslass  V.  Kendal 154 

Drake  v.  Hewins 313 

Drake  v.  Lady  Ensley  Coal,  Iron 

&  R.  Co 87 

Drake  v.  Wells 313 

Drake  v.  Wyiuan 313 

Driiry  v.  Kent 164 

DiidcGon  V.  Brouson 218 

Duhain    v.    Mermod,    Jaccard    & 

Kiivg  Jewelry  Co 600 

Duiuont  V.  Kellogg 61 

Duncan  v.  Central  Pass.  R.  Co...  546 

Durfee  v.  Garvey 221 

Duross  v:  Singer 228 

Duval  V.  Becker 302 

Dyer  V.  Sanford 291 

Dyett  V.  Pendleton 600 

Earl  of  Derby  v.  Taylor 396 

Earl  of  Sandioich  v.  Great  North- 
ern R.  Co 69 

Earle  v,  Arbogast 670 

Edgerton  v.  Page 606 

Edgett  V.  Douglass 216 

Edmison  v.  Lotmy 597 

Eells  V.  Morse 559 

Elias  v.   Griffith 650 

Elliot  V.  Fltchhurg  R.  Co 75 

Elliston  V.  Readier 529 

Emans  v.  Turkbull 166 

Erabrey  v.  Owen 54 

Emerson  v.  Shores 316 

Emmott  V.  Cole 632 

Eno  v.  Del  Vecchio " 234 

Ensminger  v.  People 715 

Eulrich  v.  Richter 93 

Farmers'  &  Merchants'  Irr.  Co.  v. 

Hill 467 

Farner  v.  Tennessee  Copper  Cci.. .     29 

Fbntiman  v.  Smith 304 

Ferguson  v.  Chase 313 

Filbert  v.   Decbert 77 

First  Nat.  Bank  of  Sioux  City  v. 

Flynn 637 

Fitch  V.  Johnson 455 

Fitchburg     Cotton     Manufactory 

Corporation  v.  Melven 581 

Fitzpatrick  v.  Boston  &  M.  R.  R.  298 

Fitzpatrick  v.  Welch 119 

Flaherty  v.  Fleming 228 

Flamang,  Case  of 8 

Flanagan  v.  Philadelphia 703 

Fleet     V.     Metropolitan     Asylum 

Board    23 

Fleeticood  v.  Hull 355 


Page 

Flint  v.  Sweeney 610 

Foley  V.  Wyeth 46 

Ford  V.  Oregon  Electric  R.  Co 452 

Ford  i\    Whitlock 262 

Formby  v.  Barker 531 

Fowler  v.  Bott 577 

Fresno  Canal  Co.  v.  Rotcell 470 

Friend  v.  Oil  Well  Supply  Co....  624 

Frogley  v.  Earl  of  Lovelace 31G 

Frogley  v.  Lovelace  (Earl  of) 316 

Frye  v.  Partridge 510 

Fuller  V.  Wason 648 

Gagnon  v.   French  Lick    Springs 

Hotel   Co 129 

Gaines  v.  Green  Pond  Iron  Min-  ' 

ing  Co 649 

Gallatin  v.  Corning  Irr.  Co 102 

Gamlen  v.  Lyon 698 

Gannon  v.  Habgadon 96 

Gardiner:  v.  Williamson 620 

Gardner  v.  Keteltas 631 

Garner  v.  Hannah 638 

Garwood  v.  New  York  Cent.  &  H. 

R.  R.  Co 68 

Gerst  V.  St.  Louis 52 

Gerzebek  v.  Lord 3S9 

Gibson  v.  Holdon 471 

Gibson  v.  Wells 664 

Gilbert  v.  Showerman 21 

Gildersleeve  v.  Hammond 53 

GiLLHAM  V.  Madison  County  R. 

R.  Co lOS 

Gillis  V.  Chase. 69 

Gilmer  v.  Mobile  &  M.  R.  Co 452 

Gihnore  v.  Driscoll 40 

Glenn  v.  Canby 376 

Glidden  v.  Second  Ave.  Inv.  Co.. .  3S9 

Goodale  v.  Tuttle 104 

Goodhart  v.  Hyett 218 

Goodman  v.  Mayor  of  Saltash. . . .  176 

Goodson  V.  Richardson 10 

Goodtitle  ex  dem.  Chester  v.  Al- 

ker  &  Elmes , 718 

Gormley  v.  Sanford 107 

Gower  v.  Postmaster  General..'..  367 

Graham  v.  Walker 181 

Graves  v.  Berdan 579 

Gray  v.  Cambridge 213 

Green  v.  Sun  Co 143 

Greene  v.  Canny 225 

Greenleaf  v.  Francis 124 

Gregory  v.  Bush Ill 

Grey  V.   Cuthhertson 343 

Grubb  V.  Bayard 155 

Gbubb  v.  Guilford 175 

Hagar  v.  Buck 378 

Hague  V.  Wheeler 136 

Hahn  v.  Baker  Lodge 242 

Hahleman  v.  Bruckluirt 136 

Hale  V.  Mcl^ea 135 


XIV 


TABLE    OF    CASES 


Page 

TTcill  V.  Brewing  Co 200 

Hall  V.  Ewin 498 

Hall  V.  Lawrence 167 

Hall  V.  'Norfolk 40 

Hall  V.  Sterling  Iron  &  Ry.  Go 215 

H anbury  v.  Jenkins 200 

Hancock  v.  Austin 636 

H annahalson  v.  Sessions 3 

H  annicJcer  v.  Lepper 53 

Hansen  v.  IMeyeb 350 

Harbcr  v.  Evans 236 

Hard  v.  Boise  City  Irrigation  d 

Land  Co 197 

Harmer  v.  Bean 558 

Harrison  v.  Rutl<ind 723 

Harsha  v.  Reid 442 

IJaricood  v.  Benton 130 

Hathorn  v.  Natural  Carbonic  Oas 

Co 131 

Huicley  v.  Sheldon 97 

Hayden  v.  Tucker 23 

Haves  V.  New  York  Gold  Mining 

Co.  of  Colorado 423 

Haves  v.  Waldron 83 

Hay  ford  v,  Spokesficld 282 

Havwood    V.    Brunswick    Perma- 
nent Benefit  Bldg.  Soc 496 

Heartt  v.  Kruger 242 

Heflin  v.  Bingham 316 

Hendricks  v.  Staek 235 

Hennessy  v.  Carmony 23 

Herman  v.  Roberts 222 

Hekne  v.  Bembow 664 

Hewlins  v.  Shippam 304 

Heywood  v.  Fulmer 162 

Hickman  v.  Maisey 723 

Hill  V.  Burgess 687 

Hill  V.  Huron 473 

Hill  V.  Tupper 197 

Hill  v.  Tuppee 90 

Hinsdale  v.  Humphrey 412 

Hoare  v.  Board  of  Works 200 

Uodgkins  v,.  Farrinyton 314 

Hoffman  v.  Savage 200 

Hole  v.  Baklow 15 

Holfofd  V.  Hatch 395 

Hollander  v.  Central  Metal  &  Sup- 
ply  Co 376 

Holmes  V.  Goring 302 

Home  Life  Ins.  Co.  of  Brooklyn  v. 

Sherman 5S3 

Hope  V.  Osborn 154 

Horn  V.  Miller 435 

Hoskins  v.  Robins 164 

Howell  V.  King 201 

Hubbard  v.  Bell 706 

HuBBAED  V.  Concord 87 

Hudson  V.  Crippi 524 

Humphries  v.  lirogden 49 

Hunt  V.  Gas  Co 13 

Huntington  v.  Asher 173 

Uurd  V.  Curtis 432 


Page 

Hurdman  v.  North  Eastern  E.  Co.  116 

Hurst  V.  Picture  Theaters 331 

Hurxthal  v.  St.  Lawrence  Boom  & 

Lumber  Co 438 

Ilo  Oil  Co.  V.  Indiana  Natural  Gas 

d  OU  Co. 140 

Indiana  Natural  Gas  &  Oil  Co.  v. 

Hinton 426 

Irving  v.   Turnbull 486 

IVINS  V.   ACKEBSON 276 

Jackson  v.  Bruns 242 

Jackson  v.  Pesked 140 

Jackson  <£•  Shark  v.  Philadelphia 

W.  d  B.R.  R.  Co 323 

James  v.  Stevenson 293 

Jenkins  v.  Lykes 316 

Jennison  v.  Walker 293 

Johnson  v.  Barton 331 

Johnson  v.  Johnson 648 

Johnson  v.  Sherman 387 

Johnstoion  Iron  Co.  v.    Cambria 

Iron  Co 163 

Jones  V.  Chappel 147 

Jones  V.  Conn 71 

Jones  v.  Earl  of  Tankeetville.  .  335 

Jones  V.  Grover 387 

Jones  v.  Hill 664 

Jones  V.  Parker 387 

Jones  V.  Pritchard 218 

Jones  v.  Tankeeville  (Earl  of)  335 

Jordeson  v.  Gas  Co 54 

Jourdain  v.  Wilson 373 

Joyner  v.  Weeks 405 

Kastner  v.  Bens; ' 331 

Kavanagh   v.  Barber 11 

Keepers  &  Governors  of  the  Pos- 
sessions, etc.,  of  Harrow  School 

V.   Alderton 643 

Kellogg  v.  Robinson 443 

Kelly  V.  Keys 163 

Kennedy  v.  Owen 490 

Keppell  v.  Bailey 90 

Keenochan   v.   New  York  Ele- 
vated R.  R.  Co 148 

Kettle  River  R.  Co.  v.  Eastern  R. 

Co.  of  Minnesota 510 

Kimpton  v.  Wood, 164 

King  v.  Allen 316 

King,  The,  v.  Hermitage 302 

Kinnaird  v.  Standard  Oil  Co. 132 

Klie  V.  Von  Broock 653,  681 

Knolle,  Case  of 562 

Knowles  v.  Dow .'....  180 

Kray  v.  Muggli 262 

Lappan  v.  Glunz 237 

I^awrence  v.  French 622 

Lawrence  v.  White 589 

Lawson  v.  Mowey 716 


TABLE    OF    CASES 


XV 


Page 

Lawton  v.  Steele 717 

Leishman  v.  White 590 

Lemiiion  v.  Webb 3 

Leprell  v.  Kleinschmidt 4 

I-ewis  V.  Gollner 538 

Lev: if  v.  Janes 723 

I^wis  Bowles,  Case  of 688 

Lexington  Bank  v.  Salling.,..  470 

Lexington  Lodge  v.  Deal 240 

Lidc  V.  Eadley 302 

Liggins  V.  luge 305 

Lincoln  v.  Burrage 486 

Lincoln  v.  Davis 718 

Little   Rock    &   Ft.    S.    R.    Co.    v. 

Chapman 120 

LiTTLEWooD  V.  Jackson 408 

London  v.  R'iggs 209 

London  County  Council  v.  Allen. .  535 
LoED   Stkaffobd  v.  Lady  Went- 

WORTH   557 

JjOthrop  V.  Thayer 660 

Loud  V.  Pendergast 545 

Loyd  V.  Langf ord 564 

Ludwell  v.  Newman 623 

Lund  V.  Neic  Bedford 145 

Lushington  v.  Boldero 694 

LUTHEB  V.  WiNNISIMMET  CO 105 

Lybbe  v.  Eart 353 

Lydick  v.  Baltimore  £  0.  R.  R.  Co.  420 
Lyon  V.  Parker 442 

McAdam    v.    Benson    Logging    d 

Lumbering  Co 282 

McCartney   v.   Londonderry,   etc., 

R.  Co 69 

McClure  v.  Leaycraf t 541 

McCormick  v.  Stowell 361 

McCrea  v.  Marsh 313 

McCullough    V.    Board    Exchange 

Co 287 

McDonald  v.  May .  574 

McEacharn  v.  Colt  on. 361 

McGhee  v.  Tennessee  Copper  Co.     29 

McKenna  v.  Eaton 242 

Mackin  v.   Haven 475 

McMurphv  v.  JNIlnot 569 

McNeil  V.  Kendall 398 

Macouiber  v.  Godfrey 95 

McFheters    v.    Moose    River   Log 

Driving  Co 712 

Madison    v.    Ducktown    Sulphur, 

Copper  &  Iron  Co 29 

Magoon  v.  Eastman 422 

Mander  v.  Falcke 540 

Manteuf el  v.  Wetzel 113 

Manufacturers'  Ga^  d-  Oil  Co.  v. 

Indiana  Natural  Gas  &  Oil  Co..  .  140 

Marshall  v.  Mosely 55S 

Martin  v.  Martin 554 

Martyn  v.  Williams 42G 

Maryland  d  P.  R.  Co.  v.  Silver. . .  445 

Mascal,  Case  of 391 

'  Big. Rig  UTS — b 


Page 
Mason  v.  Shrewsbury  &  H.  R.  Co.  256 

Mason  v.  Smith 389 

Massot  V.  Moses 162 

Master  v.  Hansard 511 

Masury  v.  Southworth 343 

Matheson  v.  Ward 259 

Matures  v.  Wcsticood 352 

Mayor,  etc.,  of  Congleton  v.  Patti- 

son  353 

Meeker  v.  East  Orange 125 

Melnis  V.  Pabst  Bi-ewing  Co 655 

Meng  V.  Coffey 64 

Meng  v.  Coffey 75 

Merrick  Water  Co.  v.  Brooklyn. . .  130 

Messinger.  Appeal  of 73 

Middlcpcld    v.    Church    Knitting 

Mills  Co 269 

MiDDLEFIELD  V.  KNITTING  Co 487 

MiDDLETON  V.   BOOMING   CO 708 

Miller  v.  Clary 45S 

Miller  v.  Edison  Electric  Illumi- 
nating Co 147 

Miller  v.  Greenwich  Tp 336 

Miller  v.  Prescott 502 

Milne,  Appeal  of 236 

Minnesota  Loan  d  Trust  Co.  v.  St. 
Anthony  Falls  Water-Power  Co.    76 

Mi7isJiull  V.  Oakes 352 

MOGG  V.  MOGG 8 

Mooers  v.  Wait 687 

Moore  v.  Mansfield 627 

Moore  v.  Rawson 277 

MooKE  V.  Sanborne 707 

Morey  v.  Fitzgerald 729 

Morris  v.  Cairncross 662 

Harris  v.  Kennedy 388 

Morrow  v.  Hassclman 528 

Morse  v.  Aldrich 429 

Moss  Point  Lumber  Co.  v.  Harri- 
son County 649 

MoTT  V.  Oppbnheimek 484 

Mountjoy.  Case  of 153 

Murphy    Chair   Co.    v.   American 
Radiator  Co 225 

National  Union  Bank  at  Dover  v. 

Segur 446 

Nave  V.  Berry 672 

Neale  v.  Mackenzie 617 

Negus  v.  Becker 235 

Newcomb  v.  Harvey 562 

Neichoff  V.  Mayo 200 

'Newman  v.  Anderton 633 

Newton  v.  Wilson 635 

New  York  Rubber  Co.  v.  Rothery     75 

Nichols  V.  Peck 29S 

NiCKLiN  V.  Williams 38 

Nitzell  V.  Paschall 287 

Noonan  v.  Albany 106 

Noonan  v.  Pardee 39 

Norcrbss  v.  James 506 


XVI 


TABLE    OF   CASES 


Pago 

Norman  v.  Wells 379 

Northern  Pac.  R.  Co.  v.  McClure. .  369 
yuttal  V.  Bracewell 92 

O'Gonnetl  v.  East  Tennessee,  V.  d 

Q.R.Co 103 

O&iLviE  V.  Hull 608 

Oririinal  Hartlepool  Co.  v.  Gibbs.  .  715 

ORiiEKOD  V.  Mill  Co 70 

Oster  V.  Brae 323 

Owen  V.  Hyde 644 

Packington  y.  Packington 692 

Page  V.  Parr 593 

Pakenham,  Case  of 427 

Palmer  v.  Edwards 373,  396 

Parish  v.  Yv'niTNEY 492 

Park  v.  White 145 

Parker  v.  Nightingale 521 

Parks  V.  Bishop 203 

Parks  V.  Boston 585 

Parrott  v.  Barney 672 

Partridge  v.  Gilbert 234 

Partridge  v.  Scott 51 

Patten  v.  Deshon 402 

Paul  v.  Hazelton 336 

Paxton  V.  Kenned  If 638 

Peabody  Heights  Co.  of  Baltimore 

City  V.  Wilson 529 

Pearson  v.  Rolfe 709 

Peck  V.  Herrington 113 

Pence  v.  Carney 129 

Pendleton  v.  Dyett 600 

Pennsylvania  Goal  Co.  v.  Sander- 
son       87 

Pennsylvania    S.    V.    R.    Co.    v. 

Reading  Paper  Mills 229 

Percival  v.  Colonial  Inv.  Co 486 

Perrot  v.  Perrot 679 

Peter  v.  Casioell 261 

Pfeiffer  v.  Grossman 1 

Phillips  V.  Rhodes 165 

Picliering  v.  Rudd 3 

Pierce  v.  Keator 176 

Pitts  V.  Lancaster  Mills 64 

Pittsburgh,   Ft.   W.   &   C.    Ry.   v. 

Peet  228 

Pixley  V.  Clark 130 

Pohlman  v.  Chicago,  M.  &  St.  P. 

R.  R 113 

Pollock   V.   Cleveland   Ship  Bldg. 

Co 712 

Pomfret  v.  Ricroft 219 

Pope  v.  Devebeux 299 

Popplewell  V.  Hodkinson 54 

Post  V.  Kearney 369 

Potter  V.  North 154 

Potts  V.  Clarke 144 

Potts-Thompson    Liquor     Co.     v. 

Capital  City  Tobacco  Go 600 

PouU  V.  Mockley 193 


Page 

Pratt  V.  Sweetser 286 

Pridgeon  v.  Excelsior  Boat  Club . .  596 

Pue  V.  Pue 282 

Purvis  v.  Shuman. . , 349 

Putzel   V.   Drovers'   &  Mechanics' 

Nat.  Bank 237 

Pynchon  v.  Stearns 644 

Queen,  The,  v.  Ghorley 280 

R.  v.  Bucknall  (Sir  J.) 269 

R,  V.  Sib  J.  Bucknall 269 

Race  V.  Ward 177 

Randall  v.  Latham 502 

Rawstrom  v.  Taylor 107 

Rea  V.  Algren 613 

Red  River  Roller  Mills  v.  Wright  86 

Reilly  v.  Booth 230 

Renals  v.  Cowlishaw 513 

Rerick  v.  Kern 318 

Reynolds  v.  Union  Sav.  Bank 236 

Richards  v.  Dower 8 

Richardson  v.  Pond 200 

Ricluirdson  v.   Tobcy 486 

Ricketts  v.  Enfield  Church  War- 
dens   382 

Rider  v.  Smith 268 

Ri7ig  V.   Walker 193 

Ritger  v.  Parker 300 

Roath  V.  Driscoll 124 

Roberts  v.  Gicyrfai  Dist.  Council  76 

Robins  v.  Cox 562 

Robinson  v.  Hartopp 165 

Roche  v.  Ulman 475 

Rockingham  v.  Penrice 556 

Rogers  v.  Atlantic,  G.  &  P.  Co 672 

Rogers  v.  Hosegood 521 

Rogers  v.  Stewart 291 

RoLT  V.  Lord  Somebville.  ..  .681,  697 

ROLT   V.    SOMER'VILLE    (L0RD)..6S1,    697 

Romer  v.  St.  Paul  City  R.  Co 17 

Ross  V.  Butler 13 

Rotherham  v.  Green 163 

Ruddick  v.  St.  Louis,  K.  &  N.  W. 

R.   Co 464 

Rust  v.  Low 271 

Rushmer  v.  Polsue 21 

Russman  v.  Ganster 635 

Rylands  v.  Fletcher 130 

St.     Helen's    Smelting    Co.     v. 

Tipping 41 

St.    Louis,    I.    M.    &    S.    Ry.    v. 

O'Baugh  452 

St.  Louis  National  Stockyards  v. 

Wiggins  Ferry  Co 323 

Salmon  v.  Matthews 635 

Salop  (Countess)  v.  Crompton 659 

S-\MPSON  v.  Easterby 382 

Sampson  v.  Easterby 382 

Sandebs  v.  Mabtin 251 


TABLE  OF  CASES 


XVll 


Page 
SandivicTi  (Earl)  v.  Oreat  North- 
ern R.  Go 69 

Sayres  v.  Collyer 545 

Schaefer  v.  Marthaler 97 

Schermerliorn  v.  Buell 684 

Scholes  V.  Eargreaves 165 

Schuster  v.  Alhrecht. Ill 

Seabrook  v.  Moyer. '. 583 

Selhy  V.  Graves .'  636 

Sharp  v.  Ropes 527 

Shaughiicssey  v.  Leary 205 

Shepardson  v.  Perlcins 266 

Sherred  v.  Cisco 246 

Shirley  v.  Crabb 240 

Simpson  v.  Godmanchester 200 

Simpson  v.  Savage 141 

Sk ALLY   V.   SnuTE 599 

Skelton  v.  Skelton 693 

Shull  V.  Glenister 203 

Sloan  V.  EolUday 205 

Smelting  Co.  v.  Tipping 26 

Smiley  v.  Van  Winkle 571 

Smith  V.  Andrews 717 

Smith  V.  Barber 628 

Smith  V.  Boston  &  M.  E.  R 298 

Smith  V.  Daii 559 

Smith  V.  Gatewood 176 

Smith  V.  Giddy 3 

Smith  V.  McEnany 598 

Smith  V.  Raleigh 593 

Smith  V.   Smith 2 

Smith  V.  Thackerah 40 

Smith  v.  Youmans 264 

Snow  v.  Parsons 87 

South   Metropolitan   R.   Co.    v. 

Eden   202 

Southworth  v.  Perring 479 

Spaulding  v.  Grundy 249 

Spencer's  Case 341 

Sposato  V.  ]\'ew  York 152 

Springer  v.  Darlington 236 

Springer  v.  Dc  Wolf .''.91 

Stackpole  v.  Healy 719 

Standard  Oil  Co.  v.  Buchi 190 

Standen  v.  Chrismas 414 

Stanislaus  Water  Co.  v.  Bachman  268 

Starr  v.  Jackson 145 

State  v.  Roberts 716 

Steiner  v.  Peterman 200 

Stevenson  v.  Lumbar d 585 

Stewart  v.  Winters 537 

Stewart  v.  Childs  Co 611 

Stewart  v.  Pinkelstone 546 

Stockport  Waterworks  Co.  v.  Pot- 
ter    88 

Stoddard  v.  Emery 392 

Stokes  V.  Cooper 593 

Stokoe  V.  Singers 280 

Storandt  v.  Vogel  &  Binder  Co.. . .  373 

Stotler  V.  Rochelle 21 


Page 

Stbaffoed  (Lobd)  v.  Wentwobth 

(Ladt) 557 

Strong  v.  Benedict 216 

Sturgeon  v.  Wing  field 373 

Sturges  V.  Bridgiuan 32 

Sullens  V.  Chicago,  R.  I.  <£  P.  R. 

Co 103 

Susquehanna    Fertilizer     Co.     v. 

Spangler 29 

Stcansea  v.  Thomas 562 

SWETT   V.   CUTTS 127 

Swinden  W.  W.  Co.  v.  Wilts,  etc., 
Canal  Co S3 

Talbott  V.  Grace , 179 

Tollman  v.  Coffin. 343 

TapUng  v.  Jones 290 

Tatem  v.  Chaplin 352 

Taylor  v.  Fickas 103 

Taylor  v.  Oicen .' 380 

Taylor  v.  Whiteheard 219 

Teiinant  v.  Goldmin 134 

Thomas  v.  Hayward 379 

Thotnas  v.  Thomas 302 

Thomas  v.  Wightman 559 

Thompson  v.  'Madsen 299 

Thompson  v.  New  Haven  Water 

Co 99 

Thompson  v.  Rose 343,  419 

Thorn  v.  Wilson 242 

Threer  v.  Barton 569 

Thunder  Bay  River  Booming  Co. 

V.    Speedily 706 

Tliurston  v.  Minke 355 

Tipping   v,    St.    Helen's   Smelt- 
ing Co 15 

ToMLiNSON  V.  Day 621,  624 

Tottle  V.  Howell 155 

Trinidad  Asplmlt  Co.  v.  Ambard. .     54 

Truloek  v.  iterte 23 

Trustees  of   Columbia  College  v. 

Lynch    •  •  496 

Trustees   of   Columbia   College 

V.  Thachek 542 

Tucker  v.  Eldred. 726 

Tulk  v.  Moxhay 494 

Timier  v.  Wright 693 

Twynam  v.  Pickard 405 

Tyler  v.  Wilkinson 122 

Tyrringham,  Case  of ' 170,  171 

Tyrringham,  Case  of 104 

Udal  V.  TJdal G7S 

Undericood  v.  WaJdron 120 

University  v.  Tucker 653 

University  Club  of  Chicago  v.  Dea- 

kin   ^13 

Upton  V.  Hosmer 361 

Vane  v.  Barnard  (Lord) 092 


XVlll 


TABLE  OP  CASES 


Page 

Vane  v.  Lord  Barnard G92 

Van  Rensselaer  v.  Hays 441 

Van  Rensselaer  v.  Radcliff 11?, 

Vail  Rensselaer  v.  Read 566 

Van  Sant  v.  Rose 535 

Veghte  v.   Raritan  Water  Power 

Co 309 

Tenniljjn  v.  Chicago,  M.  &  St.  P. 

R.  Co 232 

Vernon  v.  Smith 361 

Verplanck  v.  Wright 353 

Village  of  Dicight  v.  Hayes 309 

Vyvyan  v.  Arthur 364 

Waite  V.  O'Neil 581 

Walker's   Case 549 

Wall  V.  Hinds 384 

Wall  V.  Pittsburgh  Harbor  Co....  715 

Wallaks  v.  Pfeil 51 

Walsh  V.  Fussel 373 

Walsh  V.  Packard 424 

Ward  V.  Edesheimer G32 

Ware  v.  Allen 75 

Warr  V.  London  County  Council..  313 
Washington   Natural    Gas   Co.   v. 

Johnson 384 

Watson  V.  Bioren 205 

Watson  V.  Eunkins 562 

Wattles   V.    South   Omaha   Ice  & 

Coal  Co ; 577 

Webb  v.  Bird 33 

Webb  V.  Bird 200 

Webb  V.  Russell 566 

Webb  V.  Portland  Mfg.  Co 58 

Weekly  v.  Wildman. 178 

Weil  V.  Hill 517 

Welcome  v.  Upton 163 

West  v.  Sink 554 

West  V.  Taylor 95 

Westi)hal  v.  New  York .: 129 

WiiALEY  V.  Laing 90 

Wheatley  v.  Chrisman 215 

Wheeler  v.  Schad 432 

Wheelock  v.  Jacobs 200 

White  V.  Grand  Hotel,  Eastbourne  207 


Page 

White  V.  Molyneux 575 

White  V.  Southern  Hotel  Co 379 

White's  Bank  of  Buffalo  v.  Nichols  285 

Whitney  v.  Union  R.  Co 357 

Whittenton  Mfg.  Co.  v.  Staples. . . 

270,  505 

Whittier  v.  Winkley 209 

WiCKHAM  V.  Hawker 179 

Wiggins  v.  Water  Co 72 

Wiggins  Ferry  Co.  v.  Ohio  &  M. 

R.  Co 462 

Willey  V.  Laraioay 677 

Williams  v.  Earle 358 

Williams  v.  Hayicard 563 

Williams  v.  James 201 

Willoughby  v.  Lawrence 194 

Willow  River  Club  v.  Wade 716 

Wills  V.  Summers 393 

WiLMARTU  V.  Woodcock 5 

Wilmot  V.  Yazoo  &  M.  V.  R.  Co. . .  232 

Wilson  V.  Edmonds 662 

Wilson  V.  Hart , . . . .  495 

Wilson  V.  Mackret 163 

Wilston  V.  Pilkney 563 

Winfield  v.  Henniug 529 

WinMow  V.  Vallejo 220 

Winter  v.  Brockwell 290 

Winterfield  v.  Stauss 370 

Wiseman  v.  Lueksinger 328 

Wombell  v.  Belasyse 693 

Wood  V.  Lake 303 

Wood  V.  Leadbitter 309 

Wood  V.  Saunders 209 

Wood  v.  Veal 141 

Wood  V.  Waud 253 

Woodall  V.  Clifton 374 

Woodin  V.  Wentworth 63 

Woodward  v.  Seely 325,  326 

Wooliscroft  V.  Norton 464 

Wyatt  v.  Harman 50 

Yellowly  v.  Gower 664 

Yerex  v.  Eineder 109 

Young  v.  Spencer 140 

Young  v.  Star  Co 293 


CASES  ON  RIGHTS  IN  LAND 


PART  I 
RIGHTS  INCIDENTAL  TO  POSSESSION 


CHAPTER  I 
POSSESSION 


PFEIFFER  V.  GROSSMAN.  ' 

(Supreme  Court  of  Illinois,  1853.     15  111.  53.) 

This  cause  was  tried  before  Underwood,  Judge,  at  the  March  term, 

1853,  of  the  St.  Clair  Circuit  Court. 

Treat,  C.  J.  This  was  an  action  of  trespass  quare  clausum  fregit, 
brought  in  1853,  by  Pfeiffer  against  Grossman.  The  plea  was,  not 
guilty.  It  appeared  in  evidence,  that  the  plaintiff  had  title  to  a  certain 
tract  of  land ;  that  according  to  a  survey  made  in  1851,  a  fence  claimed 
by  the  defendant  was  on  this  tract;  the  fence  inclosed  about  half  an 
acre  of  the  tract,  part  of  which  was  in  timber,  and  the  rest  in  culti- 
vation; the  fence  was  built  by  McGuire,  who  was  in  possession  pre- 
vious to  the  defendant;  prior  to  the  survey  there  was  some  difficulty 
between  the  plaintiff  and  defendant  as  to  the  boundary  line,  the  latter 
claiming  to  the  fence;  the  defendant  was  dissatisfied  with  the  survey, 
and  continued  in  possession  of  the  ground  up  to  the  fence,  although 
notified  by  the  plaintiff  to  remove  the  fence ;  after  the  suit  was  brought, 
the  defendant  caused  another  survey  to  be  made,  which  agreed  with 
that  made  in  1851.  It  was  stated  by  the  plaintiff's  counsel,  that  the 
suit  was  brought  for  the  purpose  of  establishing  the  boundary  line 
between  the  parties.  The  court  refused  to  give  these  instructions : 
"That  the  putting  a  fence  or  letting  it  stay  on  the  land  of  another  is 
a  trespass  in  -the  eye  of  the  law,  for  which  the  aggrieved  person  is 
entitlp,d  to  at  least  nominal  damages ;  that  the  ploughing  up  of  an- 
other man's  land  and  cultivating  it,  although  the  land  may  thereby  be 
improved,  is  still  a  trespass  in  law,  for  which  the  person  aggrieved  is 

BiG.RlGHTS — 1 


2  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part  1 

entitled  to  at  least  nominal  damages."  The  jury  found  the  issue  for 
the  defendant,  and  the  court  rendered  judgment  on  the  verdict. 

The  instructions  not  only  asserted  correct  legal  principles,  but 
they  were  strictly  applicable  to  the  case.  If  a  party  puts  a  fence  on 
another's  land,  or  plows  up  the  soil,  he  is  liable  as  a  trespasser.  Such 
acts  are  a  violation  of  the  owner's  right  of  possession,  to  redress  which 
the  law  gives  him  an  action.  And  the  action  is  maintainable,  although 
the  owner  is  not  substantially  injured.  He  is  entitled  to  nominal  dam- 
ages for  the  intrusion  upon  his  possession.  The  defendant  cannot 
defeat  the  action,  by  showing  that  the  plaintiff  is  not  materially  preju- 
diced, or  even  that  he  is  actually  benefited.  A  right  is  invaded,  and  a 
wrong  committed,  and  that  is  a  sufficient  basis  for  an  action.  Every 
unauthorized  entry  on  the  land  of  another  is  a  trespass,  for  which 
an  action  will  lie.  The  law  implies  damage  to  the  owner,  and  in  the 
absence  of  proof  as  to  the  extent  of  the  injury,  he  is  entitled  to  re- 
cover norninal  damages.  Especially  is  this  the  case,  where  the  suit  is 
brought  for  the  purpose  of  settling  a  question  of  right.  Dixon  v.  Clow, 
24  Wend.  (N.  Y.)  188 ;  Pastorius  v.  Fisher,  1  Rawle  (Pa.)  27 ;  Bagby 
v.  Harris,  9  Ala.  173 ;  Plumleigh  v.  Dawson,  1  Gilman,  544,  41  Am. 
Dec.  199;  Bolivar  Manuf.  Co.  v.  Neponset  Manuf.  Co.,  16  Pick. 
(Mass.)  241;  Whipple  v.  Cumberland  Manuf.  Co.,  2  Story,  661,  Fed. 
Cas.  No.  17516. 

The  judgment  is  reversed,  and  the  cause  remanded. 

Judgment  reversed. 


SMITH  V.  SMITH. 
(Supreme  Judicial  Court  of  Massachusetts,  1872.     110  Mass.  302.) 

Tort.  The  declaration  alleged  that  the  defendant  forcibly  entered 
the  plaintiff's  close  and  broke  down  a  fence,  and  also  built  a  part  of 
a  barn  upon  the  close,  and  thereby  expelled  and  put  out  the  plaintiff 
from  possession  and  occupation  of  a  part  of  the  close,  and  kept  and 
continued  him  so  kept  out  and  expelled  from  said  part  of  the  close. 
Trial  in  the  Superior  Court,  before  Bacon,  J.,  who,  after  a  verdict 
for  the  defendant,  allowed  the  following  bill  of  exceptions : 

"The  plaintiff  offered  to  prove  that  the  eaves  or  jet  of  a  barn,  al- 
leged  to  have  been  built  and  erected  upon  the  plaintiff's  close  by  the 
defendant,  extended  over  on  to  the  close  from  fifteen  to  eighteen  inch- 
es, but  the  judge  excluded  the  evidence.     *     *     * 

"The  jury  returned  a  verdict  for  the  defendant,  and  the  plaintiff 
alleged  exceptions." 

Morton,  J.^  This  is  an  action  of  tprt  in  the  natuf-e  of  trespass 
quare  clausum  f regit. .  The  plaintiff  in  his  declaration,  among  other 
acts  of  trespass,  alleges  that  the  defendant  built  a  part  of  his  barn 

1  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Ch.  1)  POSSESSION  3 

upon  the  plaintiff's  close,  and  thereby  put  and  kept  plaintiff  out  of  the 

possession  and  occupation  of  a^part  of  the  close.     We  think  it  was 

competent  for  the  plaintiff  to  prove  that  the  eaves  of  the  defendant's 

barn  projected  over  the  plaintiff's  close.     Projecting  his  eaves  over 

the  plaintiff's  land  is  a  wrongful  act  on  the  part  of  the  defendant 

which,  if_continued  for  twenty  years,  might  give  him_a_title  to  the  land 

by  adverse  occupation.     It  is  a  wrongful  occupation  of  the  plaintiff's 

land  for~wIiIch  he  niay  maintain  an  action  of  trespass.     Codman  v. 

Evans,  7  Allen,  431;    Carbrey  v.  Willis,  Id.  364,  83  Am.  Dec.  688. 
*     * ,  * 

Exceptions  sustained.^ 


BUTLER  v.  FRONTIER  TELEPHONE  CO. 

(Court  of  Appeals  of  New  York,  1906.     186  N.  Y.  4S6,  79  N.  E.  716,  11  I*  H. 
A.  [N.  S.]  920,  116  Am.  St.  Rep.  563,  9  Ann.  Cas.  S58.) 

Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  Fourth  Judicial  Department,  entered  December  6,  1905, 
affirming  a  judgment  in  favor  of  plaintiff  entered  upon  a  decision  of 
the  court  at  a  Trial  Term  without  a  jury. 

This  is  an  action  of  ejectment,  which  was  tried  by  consent  before 
the  court  without  a  jury.  The  trial  judge  found  as  facts  that  "the 
defendant  on  or  about  January  1,  1903,  without  the  consent  of  the 
plaintiff  and  without  lawful  authority,  entered  upon"  his  premises 
in  the  city  of  Buffalo  "and  stretched  a  wire  over  and  across  the  same 
in  the  manner  described  in  the  complaint  and  maintained  said  wire 
upon  said  premises  until  January  10,  1903,  when  the  defendant  re- 

2  A.  thrust  his  arm  over  the  division  fence  betn-een  his  lot  and  B.'s.  Held, 
A.  is  guilty  of  a  trespass.  Hannabalson  v.  Sessions,  116  Iowa,  457,  90  N.  W. 
93,  93  Am.  St.  Rep.  250  (1902). 

"I  recollect  a  case,  where  I  held  that  firing  a  gun  loaded  with  shot  into 
a  field  was  a  breaking  of  the  close.  The  learned  judge  on  the  circuit  with 
me  doubted  upon  the  point,  but  many  with  whom  1  afterwards  conversed  on 
the  'subject  thought  I  was  right;  and  the  .judge  liimself,  who  at  first  dif- 
fered from  me,  was  afterwards  of  the  same  opinion ;  but  I  never  yet  heard 
that  firing  in  vacuo  could  be  considered  as  a  trespass.  No  doubt,  if  you 
could  prove  any  inconvenience  to  have  been  sustained,  an  action  might  be 
maintained;  but  it  may  be  questionable  whether  an  action  on  the  case 
would  not  be  the  proper  form.  Would  trespass  lie  for  passing  through  the 
air  in  a  balloon  over  the  land  of  another V"  Elleuborough,  C.  J.,  in  Picker- 
ing V.  Rudd,  1  Stark.  N.  P.  56,  58   (1S15). 

Compare  Clifton  v.  tfJury,  4  Times  Law  Rep.  8  (1SS7) ;  Whittaker  v.  Stang- 
vick,  100  Minn.  386,  111  N.  W.  295,  10  L.  R.  A.  (N.  S.)  921,  117  Am.  St.  Rep. 
703,  10  Ann.  Cas.  528  (1907).  .         ^  „  ,     ,      .      „ 

The  branches  of  trees  growing  on  A.'s  land  projected  over  B.  s  land.  B. 
cut  the  projecting  part  without  notice  to  A.  Hold,  A.  has  no  cause  of  action 
against  B.     Ijcmmon  v.  Webb,  [1895]  A.  C.  1. 

'  ""If  trees  projecting  over  the  boundary  are  not  in  fact  doing  any  dam- 
a^'e  it  may  be  that  the  plaiutiif's  only  right  is  to  cut  back  the  overhanging 
portions;  but  where  they  are  actually  doing  damage  I  think  there  must  be 
a  right  of  action."  Kennedy,  J.,  iu  Smith  v.  Giddy,  [1904]  2  K.  B.  448,  451. 
Com])are  Fay  v.  Prentice,  1  C.  B.  828  (1845). 


4  RIGHTS  INCIDENTAL  TO  POSSESSION  (Part  1 

moved  the  said  wire  entirely  from  plaintiff's  said  premises."  Ac- 
cording to  the  allegations  of  the  complaint  the  wire  was  strung  "about 
30  feet  from  the  surface  of  the  ground  on  the  easterly  side  and  slant- 
ing to  about  20  feet  on  the  westerly  side,"  reaching  "across  the  en- 
tire width  of  said  premises."  The  trial  judge  further  found  that 
"the  plaintiff  has  been  in  possession  of  the  premises  described  in  the 
complaint  at  all  times  mentioned  therein  and  since,  except  that  por- 
tion tliereof  occupied  by  the  defendant  with  said  wire  during  the 
period  specified."  The  damages  sustained  b)^  the  plaintiff"  were  as- 
sessed at  six  cents  for  "the  withholding  by  the  defendant  of  that  por- 
tion of  the  premises  occupied  by  said  wire  for  the  period  above  speci- 
fied." There  was  neither  allegation  nor  evidence  that  the  wire  was 
Supported  by  any  structure  standing  upon  the  plaintiff's  lot.  The 
action  was  commenced  on  the  5th  of  January,  1903.  The  court  found 
as  a  conclusion  of  law  that  the  plaintiff",  as  the  owner  in  fee  of  the 
premises  in  question,  "was  entitled  at  the  commencement  of  this  ac- 
tion to  have  said  wire  removed  from  said  premises,  and  is  entitled 
to  judgment  against  the  defendant  so  declaring,  and  for  six  cents 
damages  for  withholding  said  property  and  for  the  costs  of  this  ac- 
tion. *  *  *  "  Xhe  judgment  entered  accordingly  was  affirmed  on 
appeal  to  the  Appellate  Division  by  a  divided  vote,  and  the  defendant 
now  comes  here. 

Vann,  J,  (after  stating  the  facts).  The  question  presented  by  this 
appeal  is  whether  ejectment  will  lie  when  the  soil  is  not  touched, Jbut 
j)art  of  the  space  a  few  feet  above  the  soiris"'occupied  by  a  telephone 
wire  unlawfully  strung  by  the  defendant  across  the  plaintiff's  prem- 
ises ?  This  question  has  never  been  passed  upon  by  the  Court  of  Ap- 
peals, nor  by  the  Supreme  Court,  except  in  the  decision  now /before 
as  for  review.  Questions  similar,  but  not  identical,  as  they  related 
to  overhanging  eaves,  projecting  cornices,  or  leaning  walls,  were  de- 
cided in  favor  of  the  defendant  in  Aiken  v.  Benedict,  39  Barb.  400, 
and  Vrooman  v.  Jackson,  6  Hun,  326,  and  in  favor  of  the  plaintiff 
in  Sherry  v.  Frecking,  11  N.  Y.  Super.  Ct.  452.  In  Leprell  v.  Klein- 
schmidt,  112  N.  Y.  364,  19  N.  E.  812,  the  questxon  as  to  the  effect  of 
projecting  eaves  was  alluded  to,  but  not  decided,  because  there  was  in 
that  case  "a.  physical  entry  by  the  defendant  upon  tlie  land  of  the  plain- 
tiffs and  an  unlawful  detention  of  its  possession  from  them." 

The  precise  question  before  us  does  not  appear  to  have  been  passed 
upon  in  any  other  state,  and  upon  the  cognate  question  relating  to 
projecting  cornices  and  the  like  the  authorities  are  divided.  Some 
hold  that  ejectment  will  lie  because  there  is  an  actual  ouster  or  dis- 
seisin. Murphy  v.  Bolger,  60  Vt.  723,  15  Atl.  365,  1  L.  R.  A.  309 ;  Mc- 
Court  v.  Eckstein,  22  Wis.  153,  94  Am.  Dec.  594;  Stedman  v.  Smith, 
92  Eng.  C.  L.  1.  Others  hold  that  there  is  not  such  a  disturbance  of 
possession  as  to  sustain  an  action  in  that  form.  Norwalk  H.  &  L.  Co. 
V.  Vernam,  75  Conn.  662,  55  Atl.  168,  96  Am.  St.  Rep.  246;  Rasch  v. 
Noth.  99  Wis.  285,  74  N.  W.  820,  40  L.  R.  A.  577,  67  Am.  St.  Rep.  858. 


Ch.  1)  POSSESSION  5 

The  case  last  cited  does  not  overrule  the  earlier'  case  in  Wisconsin, 
but  proceeds  upon  the  theory  that  the  aerial  space  was  occupied  by 
the  projecting  eaves  of  both  parties,  one  above  the  other,  on  op- 
posite sides  of  the  boundary  line.  Some  of  the  cases  hold  that  a  court 
of  equity  may  order  the  removal  of  a  projection  without  deciding 
whether  ejectment  will  lie  or  not.  Thus,  in  Wilmarth  v.  Woodcock, 
58  Mich.  482,  485,  25  N.  W.  475,  it  was  decided  that  equity  would 
require  the  removal  of  a  projecting  cornice,  because  "no  remedy  at 
law  is  adequate,  owing  to  the  uncertainty  of  the  measure  of  damages, 
to  afford  complete  compensation."  But,  as  the  learned  court  continu- 
ed :  "No  person  can  be  permitted  to  reach  out  and  appropriate  the 
property  of  another,  and  secure  to  himself  the  adverse  enjoyment  and 
use  thereof,  which,  in  a  few  years,  will  ripen  into  an_  absolute, owjierr. 
slTip_by^ adverse  possession."  See,  also,  Plummer  v.  Gloversville  Elec- 
^tric  CoT;  20Xpp.  Div.  527,  47  N.  Y.  Supp.  228. 

While  some  of  the  cases  may  be  harmonized  by  resort  to  the  dis- 
tinction between  "disseisins  in  spite  of  the  owner  and  disseisins  at  his 
election,"  the  main  question  is  open,  and  must  be  determined  upon  prin- 
ciple. The  defendant  concedes  that  the  plaintiff  has  a  remedy,  but 
insists  that  it  is  an  action  for  trespass,  or  to  abate  a  nuisance,  while 
the  plaintiff  claims  that  ejectment  is  a  proper  remedy  and  one  of  espe- 
cial value,  as  it  entitles  him,  if  he  needs  it,  to  a  second  trial  as  a  matter 
of  right  and  to  costs,  even  if  he  recovers  less  than  $50  damages.  Code 
Civ.  Proc.  §§  1525,  3228. 

An  action  of  ejectment,  according  to  the  Code,  is   "an  action  to 

recover  the  immediate  possession  of  real  property."     Code  Civ.  Proc. 

""I^l^-S,  subd.  20.  While  the  statute  to  some  extent  regulates  the 
procedure,  it  did  not  create  the  action,  and  for  tlie  principles  which 
govern  it  resort  must  be  had  to  the  common  law.  Code  Civ.  Proc.  §§ 
1496  to  1532;  Real  Property  Law,  Laws  1896,  pp.  560,  594,  c.  547, 
§§  1,  218;  Rev.  St.  (2d  Ed.)  p.  303,  pt.  3,  c.  5,  tit.  1,  §  3.  _  Without  en- 
tering into  the  somewhat  involved  and  perplexing  learning  upon  the 
subject,  it  is  sufficient  to  say  that,  as  all  the  authorities  agree,  the  plain- 
tiff must  show  that  he  was  formerly  in  possession,  that  he  was  ousted 
or  deprived  of  possession,  and  that  he  has  a  right  to  re-enter  and  take 
possession.  It  is  admitted  by  the  pleadings  that  when  the  wire  was 
put  up  the  plaintiff  was  in  possession  of  the  entire  premises,  and  that 
he  was  entitled  to  the  immediate  possession  thereof  as  owner  when 
the  action  was  commenced.  The  serious  question  is  whether  he  was 
deprived  of  possession  to  the  extent  necessary  to  authorize  ejectment. 
While  ouster  is  essential  to  the  maintenance  of  the  action,  it  need  not 
be  entire  or  absolute;  for  it  is  sufficient  if  the  defendant  is  in  partial 
possession  of  the  premises  while  the  plaintiff  is  in  possession  of  the 
remainder.  Sullivan  v.  Legraves,  2  Str.  Cases,  695 ;  Doe  v.  Burt, 
1  T.  R.  701;  Lady  D'Acres  Case,  1  Lev.  58;  Rowan  v.  Kelsey, 
18  Barb.  484;  Otis  v.  Smith,  26  Mass.  (9  Pick.)  293;  Gilliam  v. 
Bird,  30  N.  C.  280,  49  Am.  Dec.  379;   Reynolds  v.  Cook,  83  Va.  817, 


6  RIGHTS  INCIDENTAL  TO  POSSESSION  (Part  1 

3  S.  E.  710,  5  Am.  St.  Rep.  317;  McDowell  v.  King,  4  Dana  (Ky.)  67; 
Adams  on  Ejectment,  27;  Newell  on  Ejectment,  38;  Warvelle  on 
Ejectment,  22.  Mines,  quarries,  mineral  oil,  and  an  upper  room  in  a 
house  are  familiar  examples.  Is  the  unauthorized  stringing  of  a  wire 
by  one  person  over  the  land  of  another  an  ouster  from  possession  to 
the  extent  that  th'e  wire  occupies  space  above  the  surface  as  claimed 
by  the  plaintiff,  or  a  mere  trespass  or  interference  with  a  right  inci- 
dental to  enjoyment  as  claimed  by  the  defendant?  Was  the  plaintiff 
in  the  undisturbed  possession  of  his  land  when  a  portion  of  the  space 
above  it  was  occupied  by  the  permanent  structure  of  the  defendant, 
however  small  ?  Was  the  space  occupied  by  the  wire  part  of  the  land 
in  the  eye  of  the  law  ? 

What  is  "real  property"  ?    What  does  the  term  include  so  far  as  the 

action  of  ejectment  is  concerned?    The  answer  to  these  questions  is 

found  in  the  ancient  principle  of  law :    "Cujus  est  solum,  ejus  est  usque 

ad  coelum  et  ad  inferos."    The  surface  of  the  ground  is  a  guide,  but 

not  the  full  measure;    for  within  reasonable  limitations  land  includes 

not  only  the  surface  but  also  the  space  above  and  the  part  beneath. 

Co.  Litt.  4a;    2  Blackstone's  Comm.  18;    3  Kent's  Com.  (14th  Ed.) 

*401.     "Usque  ad  coelum"  is  the  upper  boundary,  and, -while  this 

may  not  be  taken  too  literally,  there  is  no  limitation  within  the  bounds 

of  any  structure  yet  erected  by  man.     So  far  as  the  case  before  us 

is  concerned,  the  plaintiff  as  the  owner  of  the  soil  owned  upvr-Hs  to 

an  indefinite  extent.     He  owned  the  space  occupied  by  the  wuc,  and 

Jiad  the  right  to  the  exclusive  possession  of  that  space,  which  was  uo^ 

personal  property,  but  a  part  of  his  land.    According  to  fundamental 

principles  and  within  the  limitation  mentioned,  space  above  land  Js 

real  estate  the  same  as  the  land  itself.     The  law  regards  the  empty 

space  as  if  it  were  a  solid,  inseparable  from  the  soil,  and  protects  it 

^^  from  hostile  occupation  accordingly.     If  the  wire  had  touched  the 

.      surface  of  the  land  in  permanent  and  exclusive  occupation,  it  is  con- 

^L^    jC4^     ceded  that  the  plaintiff  would  have  been  dispossessed  pro  tanto.     A 

''ytMxX4        P^^^  °^*  ^^^  premises  would  not  have  been  in  his  possession,  but  in 

/  the  possession  of  another.    The  extent  of  the  disseisin,  however,  does 

not  control ;    for  an  owner  is  entitled  to  the  absolute  and  undisturbed 

*  possession  of  every  part  of  his  premises,  including  the  space  above, 

as  much  as  a  mine  beneath.    If  the  wire  had  been  a  huge  cable,  several 

inches  thick  and  but  a  foot  above  the  ground,  there  would  have  been  a 

difference  in  degree,  but  not  in  principle.     Expand  the  wire  into  a 

beam  supported  by  posts  standing  upon  abutting  lots  without  touching 

the  surface  of  plaintiff's  land,  and  the  difference  would  still  be  one 

of  degree  only.    Enlarge  the  beam  into  a  bridge,  and  yet  space  only 

would  be  occupied.    Erect  a  house  upon  the  bridge,  and  the  air  above 

the  surface  of  the  land  would  alone  be  disturbed.     Where  along  the 

line  of  these  illustrations  would  dispossession  begin?    What  rule  has 

the  law  to  measure  it  by?    How  much  of  the  space  above  the  plaintiff's 

land  must  be  subjected  to  the  dominion  of  the  defendant  in  order 


C^    y\L^   ~ 


Ch.  1)  POSSESSION  7 

to  effect  a  dispossession?  To  what  extent  may  the  owner  be  dis- 
possessed and  kept  out  of  his  own  before  there  is  a  privation  of  seisin? 
Unless  the  principle  of  "usque  ad  coelum"  is  abandoned,  any  physical, 
exclusive,  and  permanent  occupation  of  space  above  land  is  an  occu- 
pation of  the  land  itself  and  a  disseisin  of  the  owner  to  that  extent. 

The  authorities,  both  ancient  and  modern,  with  some  exceptions 
not  now  important,  agree  that  the  ability  of  the  sheriff  to  deliver  pos- 
session is  a  test  of  the  right  to  maintain  an  action  of  ejectment.  Jack- 
son v.  Buel,  9  Johns.  298 ;  Woodhull  v.  Rosenthal,  61  N.  Y.  382,  389 ; 
Patch  V.  Keeler,  27  Vt.  252,  255;  Warvelle  on  Ejectment,  34;  Crabb 
on  Real  Property,  710;  Butler's  Nisi  Prius,  99.  "The  rule  now  is 
that  when  the  property  is  tangible,  and  an  entr^'  can  be  made  and  pos- 
session be  delivered  to  the  sheriff,  this  action  will  lie."  Nichols  v. 
Lewis,  15  Conn.  137.  The  defendant  insists  that  the  sheriff  cannot 
give  possession  of  space  any  more  than  he  can  deliver  water  in  a 
running  stream  or  "air  whirled  by  the  north  wind."  When  the  space 
over  land  is  unoccupied,  there  is  no  occasion  for  delivery,  because 
there  is  nothing  to  exclude  the  owner  from  possession.  The  sheriff, 
however,  can  deliver  occupied  space  by  removing  the  occupying  struc- 
ture. All  that  he  does  to  deliver  possession  of  the  surface  of  land, 
or  of  a  mine  under  the  surface,  is  to  remove  either  persons  or  things 
which  keep  the  owner  out.  He  does  not  carry  the  plaintiff  upon  the 
land  and  thus  put  him  in  possession,  but  he  simply  removes  obstruc- 
tions which  theretofore  had  prevented  him  from  entering.  So,  in  this 
case,  that  officer  can  deliver  possession  by  removing  the  wire,  the 
same  as  he  would  if  one  end  happened  to  be  imbedded  in  the  soil,,  when 
no  question  as  to  the  right  to  bring  ejectment  could  arise.  Where 
there  is  a  visible  and  tangible  structure  by  which  possession  is  with- 
held,  to  the  extent  of  the  space  occupied  thereby  ejectment  will  lie. 
because  there  is  a  disseisin  measured  by  the  size  of  the  obstruction,  and 
the  sheriff  can  physically  remove  the  structure  and  thereby  restore 
the  owner  to  possession.  The  smallness  of  the  wire  in  question  does 
not  affect  the  controlling  principle,  for  it  was  large  enough  to  pre- 
vent the  plaintiff  from  building  to  a  reasonable  height  upon  his  lot. 
The  prompt  removal  of  the  wire  after  the  suit  was  brought  could  not 
defeat  the  action  because  the  rights  of  the  parties  to  an  action  at  law 
are  governed  by  the  facts  as  they  existed  when  it  was  commenced. 
Wisner  v.  Ocumpaugh,  71  N.  Y.  113. 

The  judgment  should  be  affirmed,  with  costs. 

Judgment  affirmed. 


r 


/-  - 


8  EIGHTS  INCIDENTAL  TO  POSSESSION  (Pait  1 

RICHARDS  V.  DOWER. 
(Supreme  Court  of  California,  1883.    64  Cal.  62,  28  Pac.  113.) 

Appeal  from  a  judgment  of  the  Superior  Court  of  Nevada  County. 

The  action  was  brought  to  enjoin  the  defendant  from  constructing 
a  tjjnnel  tiirough  a  lot  owned  by  the  plaintiff  in  the  city  of  Nevada. 
The  construction  of  the  tunnel  was  in  progress  at  the  commencement 
of  the  action,  and  extended,  about  fifteen  feet  into  the  lot.  It  was 
twenty  feet  below  the  surface,  and  would  pass  when  completed  one 
hundred  and  fifty  feet  through  the  lot.  The  dimensions  of  the  tunnel 
do  not  appear,  but  the  court  finds  that  it  was  being  constructed  for 
the  purpose  of  working  and  developing  a  quartz  ledge,  and  conveying 
away  the  rock  and  other  matter  therefrom.  A  preliminary  injunction 
was  granted,  but  on  the  final  hearing,  the  injunction  was  dissolved, 
and  a  judgment  rendered  for  the  defendant.  The  additional  facts  are 
sufficiently  stated  in  the  opinion  of  the  court. 

Sharpstein,  J.  The  court  found  that  at  the  time  of  the  commence- 
"  ment  of  this  action  the  defendant  had  excavated  and  projected  a  tun- 
nel under  the  lot  of  the  plaintiff  a  distance  of  15  feet,  and  was  en- 
gaged in  the  further  extension  thereof,  and  threatened  to  continue 
the  same,  but  that  said  tunnel  has  not  affected,  and  will  not,  if  com- 
pleted, affect,  injuriously  or  otherwise,  the  surface  ground  of  plain- 
tift''s  said  lot.  There  is  a  further  finding  "that  the  driving  of  the  tun- 
nel was  not,  and  will  not,  if  completed,  cause  the  plaintiff  irreparable 
injury,  or  injure  said  lot  in  any  way."  And  another  "that  the  defend- 
ant is  not  insolvent."  And,  as  a  conclusii^n  of  law  from  the  foregoing 
facts,  the  court  found  that  the  defendant  was  entitled  to  a  dissolution 
of  an  injunction  previously  granted,  and  ordered  judgment  to  be  en- 
tered to  that  effect.  From  that  judgment  the  plaintiff  appealed,  and 
the  questions  which  the  record  presents  are:  (1)  Did  the  court  err  in 
'■^  ■  its  said  conclusion  of  law?    (2)  Was  the  continuation  or  dissolution  of 

the  injunction  by  the  court  which  granted  it  so  much  a  matter  of 
discretion  as  to  preclude  any  interference  here  with  the  action  of  that 
court  in  the  premises  ? 

As  late  as  Mogg  v.  Mogg,  Dick.  670,  Lord  Thurlow  was  unable 
to  find  a  precedent  for  granting  an  injunction  to  restrain  a  mere 
trespasser  from  cutting  timber  on  another  person's  land.  But  in 
Flamang's  Case,  where  a  landlord  of  two  closes  had  let  one  to  a  tenant, 
who  took  coal  out  of  that  close,  and  also  out  of  the  other,  which  was 
not  demised,  the  difficulty  was  whether  the. injunction  should  go  as  to 
both,  and  Lord  Thurlow  ordered  it  as  to  both ;  and  on  the  authority 
of  that  case  Lord  Eldon,  in  Mitchell  v.  Dors,  6  Ves.  147,  granted  "an 
injunction  against  the  defendant,  who,  having  begun  to  get  coal  in 
his  own  ground,  had  worked  into  that  of  the  plaintiff."  In  Thomas 
V  Oakley,  18  Ves.  184,  Lord  Eldon  expressed  the  opinion  that  it  had 


Ch.  1)  POSSESSION  '  9 

then  been  settled  in  England  that  an  injunction  would  be  granted  to 
restrain  a  mere  trespasser  from  cutting  timber 'or  taking  coal  or  lead 
ore  from  another  person's  land,  and  in  that  case  he  granted  an  in- 
junction to  restrain  the  defendant  from  removing  stone  from  the 
plaintiff's  quarry,  on  the  ground  that  the  defendant  was  taking  the 
substance  of  the  inheritance, — removing  that  which  was  the  plaintiff's 
estate.  He  said  the  difference  in  value  between  stone  and  coal  or  stone 
and  lead  ore  could  not  be  considered  in  that  case.  From  which  we 
infer  that  in  his  opinion  the  right  to  an  injunction  in  such  a  case  did 
not  depend  on  the  value  of  the  substance  which  was  threatened  with 
removal,  but  upon  the  fact  of  its  constituting  the  inheritance  or  estate 
of  its  owner;  and,  in  that  light,  the  kind  or  quality  of  the  substance 
would  be  quite  as  immaterial  as  the  value  of  it. 

And  such  we  understand  to  be  the  rule  in  this  state.  In  More  v. 
Massini,  32  Cal.  594,  the  court  says :  "The  gravamen  is  a  threatened 
_trespass_upon  land.  The  trespass  is  in  the  nature  of  waste,  and  it  will 
be  committed  unless  the  defendant  is  restrained.  Should  the  threat 
be  fulfilled,  the  plaintiff  would  be  deprived  of  a  part  of  the  substance 
of  his  inheritance,  which  could  not  specifically  be  replaced.  In  the 
class  to  which  this  case  belongs  no  allegation  of  insolvency  is  neces- 
sary. The  injury  is  irreparable  in  itself."  Citing  Mining  Co.  v.  Fre- 
mont, 7  Cal.  322,  68  Am.  Dec.  262;  Hicks  v.  Michael,  15  Cal.  116; 
Leach  v.  Day,  27  Cal.  646 ;  People  v.  Morrill,  26  Cal.  360.  The  findings 
show  that  the  tunnel  which  the  defendant  is  constructing  through  the 
plaintiff's  land  is  of  a  permanent  character.  It  disturbs  the  plaintiff's 
possession,  and,  jj[^ermitted  to  continue,  will  ripen  into  an  easement. 
That,  of  itself,  is  sufficient  to  entitle  him  to  an  injunction.  Poirier  v. 
Fetter,  20  Kan.  47;  Johnson  v.  City  of  Rochester,  13  Hun,  285;  Wil- 
liams V.  Railroad  Co.,  16  N.  Y.  97,  69  Am.  Dec.  651.  The  finding  that 
the  injury  is  not  irreparable  is  inconsistent  with  the  findings  which 
describe  the  character  of  the  work  which  it  is  sought  to  have  enjoined. 
"The  injury  is  irreparable  in  itself,"  and  the  solvency  of  the  defendant 
is  an  immaterial  circumstance. 

The  findings  leave  no  room  for  doubt  as  to  the  plaintiff's  title  to 
the  premises,  and  that,  coupled  with  the  fact  that  the  threatened  in- 
jury is  per  se  irreparable,  entitles  the  plaintiff  to  the  relief  demanded 
in  his  complaint ;  and  we  think  the  error  committed  by  the  court  in 
dissolving  the  injunction  should  be  corrected.  Cases  of  palpable  error 
or  abuse  of  discretion  are  excepted  from  the  rule  under  which  this 
court  declines  to  interfere  with  the  granting,  refusing,  continuing,  or 
dissolving  of  injunctions;  and  that  rule  applies  more  especially,  if  not 
exclusively,  to  preliminary  injunctions.  We  do  not  think  that  it 
applies  to  a  case  in  which  an  injunction  is  continued  or  dissolved  after 
trial  and  findings  upon  all  the  material  issues.  In  that  case,  as  in  any 
other  in  which  the  findings  do  not  support  the  judgment,  it  should 
be  reversed.    Judgment  reversed,  and  cause  remanded,  with  directions 


10  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part  1 

to  the  court  below  to  enter  judgment  on  the  findings  that  the  injunc- 
tion issued  in  the  first  instance  be  perpetual,  and  that  the  plaintifif 
recover  his  costs. 

Myrick  and  Thornton,  JJ.,  concurred.' 

3  See,  further,  as  to  equitable  relief  against  trespass,  Goodson  v.  Kichard- 
son,  L.  R.  9  Oh.  App.  221  (1874) ;  N.  Y.,  etc.,  R.  Co.  v.  Scovill,  71  Conn.  136, 
41  Atl.  246,  42  L.  R.  A.  157,  71  Am.  St.  Rep.  159  (1898) ;  Norwalk  Heating 
Co.  V.  Vernam,  75  Conn.  662,  55  Atl.  168,  96  Am.  St.  Rep.  246  (1903) ;  Council 
Bluffs  V.  Stewart,  51  Iowa,  385,  1  N.  W.  628  (1879) ;  Hunter  v.  Carroll,  64 
N.  H.  572,  15  Atl.  17  (1888) ;  Crescent  Co.  v.  Silver  King  Co.,  17  Utah,  444, 
54  Pac.  244,  70  Am.  St.  Rep.  810  (1898). 


Ch.  2)  AIB  11 

CHAPTER  II 
AIR 


KAVANAGH  v.  BARBER. 

(Court  of  Appeals  of  Ne\v  York,  1892.     131  N.  Y,  211,  30  N.  E.  235,  15 

L.  R.  A.  689.) 

This  was  an  action  to  recover  damages  alleged  to  have  been  sus- 
tained by  plaintiff  by  reason  of  an  alleged  nuisance  created  by  defend- 
ant in  operating  a  f actory_  for  the  manufacture  of  asphalt  for  paving 
purposes. 

Andrews,  J.  The  trial  judge  Instructed  the  jury  that,  if  they  found 
that  the  vapors  arising  from  the  manufactory  of  the  defendant  con- 
stituted a  nuisance,  the  plaintiff  was  entitled  to  recover  to  the  extent 
of  the  damages  sustained  by  him  in  the  diminished  enjoyment  of  the 
premises  he  occupied.  The  evidence  justified  a  finding  that  the  fumes 
arising  from  the  asphalt  penetrated  the  house,  and  subjected  the  plain- 
tiff and  his  family  to  great  annoyance  and  discomfort.  The  air  of 
the  neighborhood  was  tainted  with  the  odor,  and  there  is  some  evi- 
dence that  the  plaintiff's  wife  and  daughter  became  ill  in  consequence. 
The  main  damage,  however,  sustained  by  the  plaintiff,  according  to 
the  proof,  was  in  the  personal  discomfort  to  which  he  was  subjected 
in  the  occupation  of  the  house. 

The  case,  in  its  legal  aspects,  is  novel.     The  house  was  owned  by 

the  plaintiff's  wife,  and  had  been  occupied  for  14  years  by  the  plain- 
tiff and  his  family,  and  was  so  occupied  when  the  manufactory  of  the 
defendant  was  built.  The  plaintiff,  so  far  as  appears,  had  no  lease 
or  other  interest  in  the  realty.  The  family,  as  is  to  be  inferred,  lived 
in  the  house  by  sufferance  of  the  wife.  The  possession  of  the  house 
followed  the*  legal  title.  Both  the  occupation  and  the  possession,  in  a 
legal  sense,  was  that  of  the  wife,  and  not  of  the  husband.  Martin 
V.  Rector,  101  N.  Y.  77,  4  N.  E.  183.  The  husband  supported  the  fam- 
ily. The  question  presented  is  whether,  under  these  circumstances,  a 
private  action  can  be  maintained  by  the  husband  for  the  discomfort 
caused  by  the  offensive  vapors.  We  find  no  precedent  for  such  an 
action  by  a  person  so  situated.  Mr.  Justice  Blackstone  defines  a  pri- 
vate nuisance  to  be  "anything  done  to  the  hurt  and  annoyance  of  the 
lands,  tenements  or  hereditaments  of  another,"  (3  Comm.  215),  which 
definition,  as  said  by  Judge  Cooley,  (Cooley,  Torts,  p.  565,)  embraces 
not  a  mere  physical  injury  to  the  realty,  but  any  injury  to  the  owner 
or  possessor  as  respects  his  dealing  with,  possessing,  or  enjoying  it. 
Interferences  with  public  and  common  rights,  creating  a  public  nui- 
sance,  when  accompanied  with  special  damage  to  the  owner  of  lands, 
also  gives  a  right  of  private  action.  The  public  nuisance  as  to  the 
person  who  is  specially  injured  thereby  in  the  enjoyment  or  value  of 


12  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part  1 

his  lands  becomes  a  private  nuisance  also.  Upon  the  evidence  in 
this  case  on  the  part  of  the  plaintiff,  the  defendant  maintained  a  pub- 
lic nuisance.  The  air  of  the  neighborhood  was,  for  a  long  distance, 
infected  with  the  disagreeable  odor  of  the  asphalt,  and  rendered  resi- 
dence within  the  area  uncomfortable,  and  life  therein  less  enjoyable. 
Upon  these  facts,  the  plaintiff's  wife,  who  owned  and  lived  in  the 
premises,  sustained  an  actionable  injury.  Mills  v.  Hall,  9  Wend.  315, 
24  Am.  Dec.  160;  Francis  v.  Schoellkopf,  53  N.  Y.  152.  The  trial 
judge  charged  the  jury  that  the  plaintiff  could  not  recover  for  any 
injury  to  the  premises,  or  for  diminished  rental  value,  for  the  reason 
that  the  title  Avas  in  the  wife.  But  the  wife,  who  both  owned  and  oc- 
cupied the  realty,  had  her  action  for  damage  for  the  special  injury 
in  being  deprived  of  the  reasonable  enjoyment  of  her  property  as  her 
dwelling  by  reason  of  the  nuisance. 

The   judgment  in  this   case  adjudges  that   the  husband   also  can 
maintain  an  action  for  the  interference  with  his  enjoyment  of  the 
premises.     The  principle  upon  which  the  judgment  proceeds,  if  sus- 
tained, will  greatly  extend  the  class  of  actionable  nuisances.    We  have 
found  no  case  where  a  private  action  has  been  maintained  for  cor- 
ruption of  the  air  by  offensive  odors,  except  by  a  plaintiff  who  was 
the  owner  of,  or  had  some  legal  interest,  as  lessee  or  otherwise,  in, 
land,  the  enjoyment  of  which  was  affected  by  the  nuisance.     The 
cases  are  numerous  of  actions  on  the  case  for  nuisance  created  by  a 
noxious   trade,   producing   offensive   and   noisome   odors,   smoke,   or 
noises,  but,  from  the  case  of  Morley  v.  Pragnell,  Cro.  Car.  510,  down, 
X*  -^A^friC    ^^y  have  been  brought  and  maintained  (so  far  as  we  can  discover) 
f^^  Q.    by  the  owner  or  lessee  of  the  realty  affected  by  them.    See  Wood,  Nuis. 
'fjL .   yQ^UL  p.  577.    AVe  perceive  no  legal  distinction  -between  the  plaintiff's  situa- 
r  /  ^  tion  and  that  of  a  lodger  or  guest  in  the  house-,  or  why,  if  the  plaintiff 

^"^■^^  ■^'       can  maintain  an  action,  each  member  of  the  household  cannot  main- 
^^,  j£^^    tain  one  likewise  for  her  or  his  separate  injury  of  the  same  kind.    The 
\  plaintiff's  situation  appeals  more  strongly,  perhaps,  than  the  others 

for  an  extension  of  the  rule  as  heretofore  understood.  But  there  was 
a  public  remedy  open  to  him  by  public  prosecution,  and  we  think  the 
public  interests  would  not  be  subserved  by  opening  the  door  to  actions 
of  this  character,  where  the  claimant  has  no  property  right  to  be  pro- 
tected from  infringement.  The  language  of  Chief  Justice  Shaw  in 
Quincy  Canal  v.  Newcomb,  7  Mete.  (Mass.)  276,  39  Am.  Dec.  778,  is 
appropriate  here :  "He  cannot  have  an  action,  because  it  would  lead 
to  such  a  multiplicity  of  suits  as  to  be  itself  an  intolerable  evil,"  We 
think  the  judgment  is  erroneous. 

Judgment  reversed,  and  new  trial  granted.  All  concur,  except 
Maynard,  J.,  absent.* 

1  Ace:  Ellis  v.  Kansas  City,  St.  J.  &  O.  B.  R.  Co.,  63  Mo.  131,  21  Am. 
Bep.  436    (1876). 

A.  was  a  visitor  in  B.'s  house  and  was  made  seriously  ill  by  gas  escaping 
from  the  defendant's  main.     In  an  action  by  A.  against  the  defendant  for 


Ch.  2)  AIB  13 

ROSS  V.  BUTLER. 

(Court  of  Chancery  of  New  Jersey,  ISGS.     19  N.  J.  Eq.  294,  97  Am.  Dec.  654.) 

Argued  on  a  rule  to  show  cause  why  an  injunction  should  not  issue. 

The  Chancellor  (Zabriskie).  *  ♦  *2  For  the  purposes  of 
this  application,  it  must  be  taken  as  established,  that  the  defendant 
is  about  to  erect  upon  his  lot,  on  the  west  side  of  Burnet  street,  a 
brick  building  with  a  fire  proof  roof,  forty  feet  front  by  sixty  feet 
deep,  and  three  stories  high;  that  the  building  is  to  be  placed  on 
the  line  of  Burnet  street  upon  the  front  of  the  lot,  which  is  one  hun- 
dred feet  wide  and  two  hundred  feet  deep,  and  has  on  its  rear  a  small 
pottery,  which  has  been  used  for  several  years ;  that  the  building  will 
be  constructed  with  two  kilns,  each  containing  one  furnace  for  burn- 
ing earthenware,  having  each  one  chimney;  that  it  is  intended  when 
the  building  is  finished,  to  use  these  kilns  and  to  burn  pine  wood, 
which  will  cause  large  volumes  of  dense  smoke  to  issue  from  the 
chimneys,  which,  with  the  cinders  emitted  with  It,  will  fall  in  the 
yards  and  upon  the  houses  in  the  vicinity,  and  penetrate  the  dwellings 
of  the  complainants,  injure  their  goods  and  make  their  homes  un- 
comfortable. These  fires  will  not  be  kindled  more  than  twice  in  each 
month,  and  after  the  first  twelve  hours  will  not  emit  large  volumes 
of  smoke,  and  in  certain  states  of  the  atmosphere  the  smoke  will  be 
carried  off  without  penetrating  the  houses  of  the  complainants. 

It  must  also  be  taken  as  established,  that  Burnet  street,  in  this  lo- 
cality, and  the  adjoining  parts  of  the  city,  are,  if  not  continuously, 
thickly  built  up,  and  have  been  so  built  up  for  years ;  that  these  build- 
ings have  been,  and  now  are,  used  for  dwellings ;  that  the  complain- 
ants all  occupy  dwellings  on  Burnet  street,  between  New  and  Oliver 
streets,  and  that  the  dwelling  house  of  the  complainant,  Agnew,  is 
on  the  opposite  side  of  Burnet  street,  and  within  forty  feet  of  the 
proposed  pottery ;  that  this  part  of  the  city  is  used  for  business  and 
mechanical  purposes,  and  is  in  the  neighborhood  of  the  canal  and 
river,  and  of  the  wharves,  docks,  and  coal  and  lumber  yards  on  it,  and 
is  not  the  residence  of  the  more  wealthy  and  luxurious  inhabitants, 
but  it  is  occupied  by  business  men  and  mechanics  of  moderate  means. 

The  question  is,  whether  this  factory,  and  the  business  proposed 
to  be  carried  on  in  it  in  the  manner  stated,  will  be,  in  that  neighbor- 


the  damage  so  caused,  an  instruction  that  A.  could  recover,  If  he  was  in- 
jured by  the  gas  and  the  defendant  was  guilty  of  negligence  and  A.  was 
not,  was  sustained.  Hunt  v.  Gas  Co.,  8  Allen  (Mass.)  169,  85  Am.  Dec.  697 
(1864). 

Compare:  Ft.  Worth,  etc.,  Co.  v.  Glenn,  97  Tex.  586,  SO  S.  W.  992.  65  L. 
R.  A.  818,  104  Am.  St.  Rep.  894,  1  Ann.  Cas.  270  (1904) ;  Herman  v.  Buffalo, 
214  N.  Y.  316,  108  N.  E.  451  (1915). 

2  Part  of  the  opinion  Is  omitted. 


14  RIGHTS  INCIDENTAL  TO  POSSESSION,  (Part  1 

hood  and  to  these  complainants,  a  nuisance  such  as  this  court  ought 
to  prevent  and  restrain. 

The  defendant  contends  that  it  will  not  be  a  nuisance:  First,  be- 
cause the  annoyance  will  not  be  great,  and  only  occasional,  principally 
in  the  night,  when  it  will  not  be  much  noticed,  and  will  not  be  in- 
jurious to  health;  secondly,  because  it  is  in  an  old  part  of  the  town, 
now  deserted  by  the  better  class  of  residents,  and  given  up  principally 
to  trade  and  manufactures,  and  on  which  there  are  not  many  valuable 
buildings;  and,  thirdly,  because  it  is  near  the  canal  and  river,  where 
there  is  an  abundant  supply  of  water  to  extinguish  any  fires  which 
may  be  occasioned  by  the  business.     *     *     * 

The  law  takes  care  that  lawful  and  useful  business  shall  not  be  put 
a  stop  to  on  account  of  every  trifling  or  imaginary  annoyance,  such 
as  may  offend  the  taste  or  disturb  the  nerves  of  a  fastidious  or  over 
refined  person.'  But,  on  the  other  hand,  it  does  not  allow  any  one, 
whatever  his  circumstances  or  condition  may  be,  to  be  driven  from 
his  home,  or  to  be  compelled  to  live  in  it  in  positive  discomfort,  al- 
though caused  by  a  lawful  and  useful  business  carried  on  in  his  vicini- 
ty. The  maxim,  "Sic  utere  tuo  ut  alienum  non  laedas,"  expresses  the 
well  established  doctrine  of  the  law. 

It  is  not  necessary,  to  constitute  a  nuisance,  that  the  matter  com- 
plained of  should  affect  the  health  or  do  injury  to  material  property. 
It  is  sufficient,  in  the  language  of  Sir  Knight  Bruce,  if  it  is  "an  in- 
convenience materially  interfering  with  the  ordinary  comfort,  physical- 
ly, of  human  existence,  not  merely  according  to  elegant  and  dainty 
modes  and  habits  of  living,  but  according  to  plain  and  sober  and  sim- 
ple notions  among  the  English  people."     *     *     * 

The  law,  then,  must  be  regarded  as  settled,  that  when  the  prosecu- 
tion of  a  business,  of  itself  lawful,  in  the  neighborhood  of  a  dwelling 
house,  renders  the  enjoyment  of  it  materially  uncomfortable,  by  the 
smoke  and  cinders,  or  noise  or  offensive  odors  produced  by  such  busi- 
ness, although  not  in  any  degree  injurious  to  health,  the  carrying  on 
such  business  there  is  a  nuisance,  and  it  will  be  restrained  by  injunction. 

That  large  quantities  of  dense  smoke  produced  by  burning  pine 
wood,  with  the  cinders  floating  in  it,  faUing  upon  the  houses  and 
yards  in  the  vicinity,  and  penetrating  the  dwellings,  would  cause  ma- 
terial discomfort,  there  can  be  no  doubt.  In  this  case,  it  is  contended 
that  as  the  burning  will  be  but  twice  in  a  month,  and  for  twelve  hours 
only,  and  that  principally  at  night,  it  will  be  so  slight  as  not  to  be  a 
material  discomfort. 

A  nuisance  of  this  kind  may  possibly  occur  so  seldom  that  it  will 
not  be  held  to  produce  a  material  discomfort.  Where  the  occurrence 
was  only  accidental  and  not  produced  by  the  regular  course  of  busi- 

3  See  Akers  v.  Marsh,  19  App.  D.  C.  28  (1901) ;  Wade  v.  Miller,  ISS  Mass. 
6,  73  N.  E.  849,  69  L.  R.  A.  820  (1905). 


Ch.  2)  AIB  15 

ness,  and  recurring  otjly  three  or  four  times  a  year,  and  not  intended 
to  be  again  permitted,  it  was  held  not  to  be  a  proper  cause  for  an 
injunction  to  stop  a  lawful  business,  but  that  the  party  must  be  put 
to  his  action  for  damages.* 

But  I  am  not  aware  of  any  authority  or  established  principle,  holding 
'  that  a  clear  unmistakable  nuisance,  which  it  is  intended  to  commit 
periodically,  will  be  permitted  because  it  does  not  exist  the  greater 
portion  of  the  time,  but  only  for  a  small  portion  of  it.  This  court  will 
not  determine  that  a  family  shall  have  their  dwelling  house  made  un- 
comfortable to  live  in  for  twelve  hours,  once  in  two  weeks,  or  that 
they  shall  protect  themselves  by  closing  the  house  tightly,  and  re- 
maining indoors  for  that  time.  It  is  surely  no  justification  to  a  wrong- 
doer, that  he  takes  away  only  one  twenty-eighth  of  his  neighbor's  prop- 
erty, comfort,  or  life.     *     *     * 

Another  question  raised  is,  whether  this  business,  although  in  some 
places  it  might  be  a  nuisance,  is  not  lawful  here,  on  the  ground  that 
this  is  a  part  of  the  city  devoted  to  such  business,  and  therefore  a 
convenient  and  proper  place  for  it.  The  defendant  is  about  to  erect 
his  pottery  in  a  part  of  the  city  where  there  are  no  costly  dwellings, 
and  inhabited  by  persons  in  moderate  circumstances,  some  of  whom 
are  mechanics,  and  some  tradesmen,  and  carry  on  their  trades  and 
business  on  their  own  premises,  but  none  of  whom  cause  any  annoy- 
ance in  kind  or  degree  like  the  smoke  of  such  a  pottery. 

The  doctrine  that  a  business  which  of  itself  was  a  nuisance  to  dwell- 
ings in  its  vicinity,  might  be  carried  on  lawfully  if  in  a  convenient  and 
suitable  place,  has  been  applied  to  justify  such  business  to  the  dis- 
comfort of  the  inhabitants  in  their  own  dwelling  houses,  on  the  ground 
that  such  trade  and  business  rnust  be  carried  on  somewhere,  and  that 
certain  places  should  be  considered  proper  for,  and  dedicated  to,  such 
purposes.  This  position  has  been  supported  by  many  dicta,  and  some 
authorities. 

In  England,  it  was  founded  on  a  dictum  of  Baron  Comyns  in  his 
Digest,  title,  "Action  upon  the  Case  for  a  Nuisance,  (C),"  in  which  he 
says:  "So  it  does  not  lie  for  a  reasonable  use  of  any  right,  though 
it  be  to  the  annoyance  of  another;  as  if  a  butcher,  brewer,  &c.,  use 
his  trade  in  a  convenient  place,  though  it  be  to  the  annoyance  of  his 
neighbor."  And  on  this  authority,  the  Court  of  Common  Pleas,  in 
the  case  of  Hole  v.  Barlow,  4  C.  B.  (N.  S.)  334,  held  that  it  was  no  mis- 
direction for  the  judge  at  Nisi  Prius,  to  submit  it  to  a  jury,  whether 
the  burning  of  brick,  the  nuisance  there  complained  of,  was  in  a 
proper  and  convenient  place. 

But  this  case  was  expressly  overruled  in  Bamford  v.  Turnley,  first 
in  the  King's  Bench,  and  then  on  error  in  the  Exchequer  Chamber, 
3  Best  &  Smith,  62.  Afterwards,  the  question 'was  again  raised  in 
the  case  of  Tipping  v.  The  St.  Helen's  Smelting  Company  [11  H.  L. 

*  See  Swain  v.  G.  N.  Ey.  Co.,  4  De  G.,  .T.  &  S.  211  (1SG4;. 


16  RIGHTS  INCIDENTAL  TO  POSSESSION  (Part  1 

C.  642  (1865)],  by  which  the  law  is  considered  as  finally  settled  in 
England.     *     *     * 

I  find  no  authority  that  will  warrant  the  position  that  the  part  of 
a  town  which  is  occupied  by  tradesmen  and  mechanics  for  residences 
and  carrying  on  their  trades  and  business,  and  which  contains  no  ele-^ 
gant  or  costly  dwellings,  and  is  not  inhabited  by  the  wealthy  and  lux- 
urious, is  a  proper  and  convenient  place  for  carrying  on  business  which 
renders  the  dwellings  there  uncomfortable  to  the  owners  and  their 
families  by  offensive  smells,  smoke,  cinders,  or  intolerable  noises, 
even  if  the  inhabitants  are  themselves  artisans,  who  work  at  trades 
occasioning  some  degree  of  nOise,  smoke,  and  cinders.  Some  pairts  of 
a  town  may,  by  lapse  of  time,  or  prescription,  by  the  continuance  of 
a  number  of  factories  long  enough  to  have  a  right  as  against  every 
one,  be  so  dedicated  to  smells,  smoke,  noise,  and  dust,  that  an  addi- 
tional fa,ctory,  which  adds  a  little  to  the  common  evil,  would  not  be 
considered  at  law  a  nuisance,  or  be  restrained  in  equity. 

There  is  no  principle  in  law,  or  the  reasons  on  which  its  rules  are 
founded,  which  should  give  protection  to  the  large  comforts  and  en- 
joyments with  which  the  wealthy  and  luxurious  are  surrounded,  and 
fail  to  secure  to  the  artisan  and  laborer,  and  tlieir  families,  the  fewer 
and  more  restricted  comforts  which  they  enjoy. 

But  the  question  remains,  what  degree  or  amount  of  discomfort  is 
necessary  to  constitute  a  nuisance.  It  is  clear  that  every  thing  that 
renders  the  air  a  little  less  pure,  or  is  to  any  extent  disagreeable,  is  not 
necessarily  a  nuisance.  The  smoke  that  may,  in  certain  conditions  of 
the  atmosphere,  descend  from  a  neighbor's  chimney,  the  fumes  that 
may  sometimes  be  wafted  from  his  kitchen,  though  not  desirable  or 
agreeable,  are  not  a  nuisance.  Between  them  and  the  dense  smoke 
from  a  kiln  or  factory,  that  renders  breathing  difficult  and  painful,  and 
smells  offensive  to  the  verge  of  nauseating,  there  is  debatable  ground, 
'  on  which  it  may  be  difficult  to  fix  the  exact  point  at  which  the  smoke 
or  smell  becomes  a  nuisance  in  the  eye  of  the  law. 

The  word  "uncomfortable"  is  not  precise,  nor  does  the  phrase  of 
Vice  Chancellor  Bruce,  "according  to  plain  and  sober  and  simple  no- 
tions among  the  English  people,"  add  much  to  making  it  definite.  In 
fact,  no  precise  definition  can  be  given;  each  case  has  to  be  judged 
of  by  itself. 

Here  the  question  is,  whether  a  dense  smoke  laden  with  cinders, 
caused  by  the  burning  of  pine  wood,  and  continued  for  twelve  hours, 
twice  in  each  month,  falling  upon  and  penetrating  the  houses  and 
premises  of  the  complainants,  at  distances  varying  from  forty  to  two 
hundred  feet,  would  cause  such  injury,  annoyance,  and  discomfort,  as 
would  constitute  a  legal  nuisance.  I  am  of  opinion  that  it  would.  The 
Jbuilding  of  the  pottery  would  be  no  nuisance.  It  is  possible  that  the 
burning  of  earthenware  may  be  conducted  with  other  fuel  than  pine 
wood,  not  emitting  large  quantities  of  dark,  dense  smoke  or  cinders ; 
and  equity  will  not  interfere  against  a  nuisance  that  is  only  contingent. 


Ch.  2)  AIR  17 

The  defendant  may,  if  he  sees  fit,  finish  his  building.  But  it  was  proper 
for  the  complainants,  as  soon  as  they  knew  of  his  intention  to  use 
the  building  for  a  purpose  objectionable  to  them,  to  apply  in  equity 
for  relief.  This  court  would  be  very  reluctant  to  interfere,  if  they 
had  stood  by,  without  objection,  and  allowed  him  to  expend  his  money. 
An  injunction  must  issue  against  using  the  building  for  burning 
earthenware,  or  any  manufacture  with  pine  wood,  or  any  fuel  that 
may  emit  large  quantities  of  dense  smoke.  The  injunction,  of  course, 
may  be  removed  or  modified,  if,  upon  the  final  hearing  of  the  cause, 
it  appears  that  the  consequences  on  which  this  decision  is  founded, 
will  not  follow  from  such  use  of  the  premises." 


ROMER  V.  ST.  PAUL  CITY  RY.  CO. 

(Supreme  Court  of  Minnesota,  1899.    75  Minn.  211,  77  N.  W.  825,  74  Am. 

•      St.  Kep.  455.) 

Start,  C.  J.®  This  was  an  action  for  damages  against  the  defend- 
ant for  so  maintaining  and  operating  its  street-car  barn,  and  switching 
the  cars  in  and  out  of  it,  as  to  constitute  a  nuisance,  whereby  the  rental 
value  of  the  plaintiff's  real  estate  v/as  impaired.  At  the  close  of  the 
evidence  the  trial  court  directed  a  verdict  for  the  defendant,  and  the 
plaintiff  appealed  from  an  order  denying  his  motion  for  a  new  trial. 

Competent  evidence  was  introduced  on  the  trial,  which  was  sufifi- 
cient,  taking  the  most  favorable  view  of  it  for  the  plaintiff,  to  estab- 
lish the  following  facts:  Ramsey  street  and  Smith  and  Thompson 
avenues  are  public  streets  within  the  city  of  St.  Paul.  The  plaintiff 
has  owned  for  some  years,  and  still  owns,  the  real  estate  described  in 
the  complaint,  abutting  upon  the  street  and  avenues  named,  which  is 
occupied  by  dwelling  houses  and  flats,  as  stated  in  the  complaint.  The 
defendant  is  a  corporation  for  the  purpose  of  operating  street-railway 
lines  in  the  city  of  St.  Paul,  and  has  been  so  engaged  since  1872,  and 
for  the  past  nine  years  it  has  been  engaged  in  operating  a  general  sys- 
tem of  electric  street  railways  in  the  city,  composed  of  various  lines ; 
but  each  line  is  practically  a  part  of  every  other  line,  so  that  a  passen- 
ger boarding  the  car  on  any  particular  line  can,  by  means  of  a  transfer, 
required  by  ordinance,  on  payment  of  one  fare,  ride  to  any  point  on 
any  other  line  embraced  within  the  system.  One  of  the  lines  of  this 
system  is  operated  along  Ramsey  street,  and  is  known  as  the  "Grand 

5  Ace:  Walter  v.  Selfe,  4  De  G.  &  S.  315  (1S51) ;  Hurlbut  v.  McKone,  55 
Conn.  31,  10  Atl.  164,  3  Am.  St.  Rep.  17  (1887) ;  Euler  v.  Sullivan,  75  Md.  616, 
23  Atl.  845,  32  Am.  St.  Rep.  420  (1892) ;  Stevens  v.  Rockport  Granite  Co., 
216  Mass.  486,  104  N.  E.  371,  Ann.  Cas.  1915B,  1054  (1914) ;  Robinson  y. 
Baugh,  31  Mich.  290  (1875). 

6  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 

Big. Rights — 2 


IS  RIGHTS  INCIDENTAL  TO  POSSESSION  (Part  1 

Avenue  Line,"  which  connects  with  or  crosses  all  the  other  lines  of  the 
systern.  The  defendant  is  the  owner  of  the  land  bounded  by  Ramsey 
street  and  Thompson  and  Smith  avenues,  upon  which  is  located  the 
car  barn  in  question,  which  fronts  on  Ramsey  street.  It  has  been  the 
owner  of  this  land,  and  has  maintained  a  car  barn  thereon,  and  operat- 
ed its  cars  in  and  out  of  it,  for  many  years.  Since  1890  electricity  has 
been  the  motive  power  used  on  the  defendant's  lines,  and  since  that 
date  it  has  operated  on  Ramsey  street  its  Grand  avenue  line  in  front 

of  the  plaintiff's  property,  at  which  point  it  has  used  a  cross  switch. 
*     *    * 

The  location  of  the  barn  is  practically  a  residence  district,  but  it  is 
within  a  few  blocks  of  the  business  part  of  the  city,  with  a  lumber  yard 
and  several  shops  and  stores  in  its  immediate  vicinity.  The  defendant's 
employes  begin  about  4  o'clock  in  the  morning  to  take  the  cars  out  of 
the  barn  with  the  switching  motor,  and  put  them  in  position  on  the 
streets  around  the  barn  for  distribution  over  the  system.  The  cars 
are  brought  back  in  the  evening,  and  are  taken  into  the  barn  up  to  1 
o'clock  in  the  morning.  In  switching  and  distributing  the  cars  a  great 
noise  is  made,  which  is  heard  every  morning  from  4  to  6  o'clock,  and 
again  in  the  evening  to  1  o'clock  in  the  morning.  The  cars  are  taken 
out  of  the  barn  on  Thompson  avenue,  and  around  the  curves  to  Ram- 
sey street,  and  run  over  the  switches  in  front  of  the  plaintiff's  brick 
block.  The  cars,  in  running  around  the  curves,  produce  a  sharp,  grind- 
ing noise,  and  in  making  up  the  trains  and  pulling  them  out  there  is  a 
bumping  noise.  The  alleged  nuisance  consisted  of  the  loud  and  dis- 
agreeable noises  caused  by  the  defendant  so  switching  its  cars  in  and 
out  of  the  barn,  and  running  them  over  and  across  the  curves  on 
Thompson  and  Smith  avenues,  and  over  the  switch  in  front  of  the 
plaintiff's  block  on  Ramsey  street;  also,  by  the  ringing  of  the  gongs  on 
the  cars,  the  loud  talking  of  the  defendant's  employes  in  charge  of 
them,  and  the  hammering  in  cleaning  and  repairing  of  the  cars  in  the 
street.  The  noises  so  produced  were  such  as  to  disturb  the  rest  and 
comfort  of  the  plaintiff,  his  tenants,  and  other  property  owners  in  the 
vicinity  of  the  car  barn,  by  keeping  them  awake  until  late  at  night,  and 
rousing  them  in  the  early  hours  of  the  morning.  And,  further,  in  the 
obstruction  of  the  streets  in  front  of  plaintiff's  property  by  permitting 
its  cars  to  stand  thereon,  and  by  bringing  coal,  wood,  sand,  and  other 
material  to  be  used  in  the  operation  of  its  electric  line,  and  unloading 
them  upon  the  street  at  or  near  the  barn.  The  rental  value  of  the  plain- 
tiff's property  has  been  in  some  measure  reduced  by  the  alleged  nui- 
sance. It  was  substantially  admitted  by  the  plaintiff  on  the  argument  of 
this  appeal  that  the  defendant  was  not  guilty  of  any  negligence  in  the 
construction,  maintenance,  and  operation  of  its  street-railway  tracks, 
curves,  switches,  cars,  and  barn  at  the  point  in  question.  It  was  also 
conceded  on  the  trial  that  no  negligence  in  the  premises  had  been  prov- 
en. As  to  the  repairs  of  the  cars  in  the  street,  the  evidence  shows  that 
they  were  such  as  were  occasionally  necessary  to  put  them  in  a  condi- 


Ch.2)  AIR  19 

tion  to  be  moved.  The  obstruction  of  the  streets  by  the  cars  was  tem- 
porary.   *    *    * 

The  real  question,  then,  in  this  case,  isjwhether  the  loud  and  disagree- 
able noises  necessarily  occasioned  by  the  defendant  in  running  its  cars 
over  its  switches  and  curves  in  the  streets,  late  at  night  and  early  in  the 
morning,  whereby  the  plaintiff  is  disturbed  in  the  enjoyment  of  his 
property,  is  an  actionable  nuisance.  The  plaintiff',  while  conceding  that 
the  defendant  has  a  right  to  maintain  its  car  barn  at  the  intersection 
of  these  streets,  and  to  construct  side  tracks  and  switches  on  Ramsey 
street,  claims  it  has  no  such  right  on  Smith  and  Thompson  avenues, 
and  no  legal  right  to  switch  its  cars  in  and  out  of  its  barn  over  the 
tracks  and  curves  upon  the  avenues.    *     *     * 

We  find  in  these  ordinances  no  express  grant  to  the  defendant  to 
maintain  the  curves  and  switches  in  the  avenues  in  question  for  the 
purpose  of  taking  its  cars  in  and  out  of  its  barn,  but  the  right  to  do 
so  was  given  by  necessary  implication.    *    *    * 

This  conclusion,  however,  does  not  dispose  of  this  appeal ;  for  while 
it  is  true,  as  a  general  proposition,  that  what  is  authorized  to  be  done 
by  law  cannot  be  a  public  nuisance,  yet  it  may  be  a  private  nuisance,  as 
to  individuals  who  are  specially  injured  thereby.  2  Wood,  Nuis.  557. 
The  question  still  remains  whether  the  loud  and  disagreeable  noises 
occasioned  by  the  running  of  the  defendant's  cars  in  and  out  of  its 
barn  over  the  curves  and  switches  on  the  streets  at  the  place  and  at  the 
hours  in  question,  although  authorized  by  the  city  ordinances,  consti- 
tute an  actionable  nuisance,  as  to  the  plaintiff.  The  answer  to  this 
question — there  being  no  negligence  in  the  case — depends  on  whether 
the  location  of  the  defendant's  car  barn  was  a  reasonable  and  proper 
one,  and  whether  the  use  of  the  streets  at  the  times  and  in  the  manner 
they  were  used  by  the  defendant  in  running  its  cars  over  the  curves  and 
switches,  whereby  the  noises  complained  of  were  produced,  was  one 
of  the  reasonable  uses  or  purposes  for  which  the  streets  were  acquired. 
The  plaintiff  cites  and  relies  on  a  class  of  cases  to  the  effect  that,  where 
a  party  is  carrying  on  a  lawful  business  on  his  own  land  without  neg- 
ligence, yet  if  it  is  a  business  which  is  attended  with  loud  and  disagree- 
able noises,  or  produces  noisome  smells  or  noxious  vapors,  whereby 
the  property  and  comfort  of  those  dwelling  in  the  neighborhood  are 
materially  injured  and  disturbed,  the  business  is  a  nuisance  per  se. 
Such  cases,  however,  are  not  particularly  in  point ;  for  this  is  not  the 
case  of  carrying  on  an  offensive  trade  or  business  on  one's  own  prem- 
ises which  may  be  carried  on  at  places  removed  from  the  occupied 
parts  of  a  city,  or  beyond  its  limits. 

The  case  of  Baltimore  &  P.  Ry.  Co.  v.  Fifth  Baptist  Church,  108 
U.  S.  317,  2  Sup.  Ct.  719,  27  L.  Ed.  739,  also  relied  on  by  the  plaintiff, 
is  more  nearly  in  point  than  any  other  cited.  But  that  case  is  clearly 
distinguishable  from  the  one  at  bar.  '  It  was  a  case  where  a  commercial 
railway  company,  whose  motive  power  was  steam,  located  its  enginfe 
house  and  machine  shop  tnimediatcly  adjoining  a  then  existing  churcb 


20  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part  1 

edifice,  which  was,  and  had  been  for  some  years  prior  to  such  location, 
continuously  used  by  the  church  as  its  house  of  worship.  The  ham- 
mering in  the  shop,  the  passing  of  the  engines  in  and  out  of  the  round- 
house, the  blowing  of  whistles,  the  sounding  of  the  bells,  and  the  cin- 
ders and  offensive  odors,  created  a  constant  disturbance  of  the  religious 
exercises  of  the  church.  Such  acts  were  held  to  constitute  an  actiona- 
ble nuisance,  and  it  was  held  that  the  church  was  entitled  to  damages 
in  the  premises.  This  was  clearly  a  case  of  an  improper  and  unrea- 
sonable location  of  its  roundhouse  and  machine  shop  by  the  railway 
company,  with  reference  to  which  the  court,  in  its  opinion,  said,  '"There 
are  many  places  in  the  city  sufficiently  distant  from  the  church  to  avoid 
all  cause  of  complaint,  and  yet  sufficiently  near  the  station  of  the  com- 
pany to  answer  its  purposes."  But  there  is  a  radical  difference  between 
an  ordinary  commercial  railway,  operated  by  steam,  and  a  surface 
street  railway,  operated  by  electricity,  as  to  the  selection  of  its  round- 
houses and  machine  shops  by  the  one,  and  its  car  barns  by  the  other. 
In  each  case  the  selection  must  be  made  with  reference  to  the  rights  of 
property  owners  in  the  neighborhood ;  also,  those  of  the  railway  com- 
pany and  of  the  public.  The  rights  and  convenience  of  property  own- 
ers cannot  alone  be  considered,  for  one  living  in  a  city  must  necessari- 
ly submit  to  the  annoyances  which  are  incidental  to  urban  life,  and  in- 
dividual comfort  must  in  many  cases  yield  to  the  public  good. 

Now,  the  only  ground  for  claiming  in  this  case  that  the  location  of 
the  defendant's  car  barn  was  an  improper  one  is  that  it  is  in  the  resi- 
dence portion  of  the  city.  But  the  exclusive  business  of  the  defendant 
is  the  carrying  of  passengers  within  the  limits  of  the  city  and  in  its 
streets.  Its  lines  traverse  the  streets  of  the  residence  portion  of  the 
city.  Its  business  is  there.  It  takes  on  and  discharges  passengers  in 
all  parts  of  the  city.  It  must  have  its  car  barns  so  located  that  it  can 
promptly  get  its  cars  upon  its  lines  for  the  purpose  of  enabling  the  peo- 
ple of  the  city  to  seasonably  get  from  their  homes  to  their  respective 
places  of  business  or  labor.  It  cannot  locate  its  barns  outside  of  the 
city,  because  it  is  only  authorized  to  build  and  operate  its  lines  within 
the  city  limits  and  upon  its  streets;  and,  if  it  had  the  authority  to  do 
otherwise,  it  would  be  impractical  and  detrimental  to  public  interests 
to  do  so.  Again,  if  it  locates  its  barns  at  points  where  there  are  at 
present  no  dwelling  houses,  it  is  only  a  matter  of  time  when  some  prop- 
erty owner  will  be  disturbed  by  the  loud  and  disagreeable  noises  nec- 
essarily occasioned  by  taking  its  cars  in  and  out  of  the  barns.  The 
rights  of  such  an  owner  are  the  same  as  those  of  the  plaintiff.  The 
barn  in  question  is  only  one  of  five  barns  located  and  used  by  the  de- 
fendant for  the  same  purpose  in  different  parts  of  the  city,  and  the 
evidence  conclusively  shows  that  its  location  is  not  an  improper  or  un- 
reasonable one. 

The  further  question,  whether  the  maintenance  and  use  by  the  de- 
fendant of  the  switches  and  curves  in  question  are  a  proper  street  use, 
is  settled  adversely  to  the  plaintiff  by  the  purevious  decisions  of  this 


Ch.  -2)  AIR  21 

court.  ^  Such  maintenance  and  use  are  a  necessary  incident  to  the  opera- 
tion of  its  street-car  system,  which  derives  its  business  from  the  streets, 
is  intended  for  the  convenience  of  the  travel  therein,  and  is  in  aid  of 
the  identical  use  for  which  the  streets  were  acquired ;  hence  the  main- 
tenance and  operation  of  these  switches  and  curves  are  a  proper  street 
use,  and  not  an  additional  burden  thereon.  Newell  v.  Railway  Co., 
35  Minn.  112,  27  N-.  W.  839,  59  Am.  Rep.  303.  The  discomfort  and 
injury  sustained  by  the  plaintiff  from  the  loud  and  disagreeable  noises 
produced  by  taking  the  cars  of  the  defendant  in  and  out  of  its  barn  over 
the  switches  and  curves  at  the  place  and  at  the  times  in  question  are 
the  same,  except  in  a  greater  degree,  as  are  sustained  by  property  own- 
ers at  the  street  corners  where  its  cars  are  operated  over  curves.  The 
acts  of  the  defendant  complained  of  do  not  constitute  a  private  nui- 
sance for  which  the  plaintiff  is  entitled  to  recover  damages. 
Order  affirmed.^ 


STOTLER  V.  ROCHELLE. 

(Supreme  Court  of  Kansas,  1910.    83  Kan.  86,   109  Pac.  788,  29  L.   R.  A. 

[N.  S.]  49.) 

Mason,  J.®  A  hospital  for  the  treatment  of  patients  afflicted  with 
cancer  was  about  to  be  established  in  Kansas  City,  Kan.,  in  a  building 
formerly  used  as  a  dwelling  house.  The  owner  and  occupant  of  ad- 
jacent premises  brought  an  action  to  enjoin  its  establishment  upon  the 
ground  that  in  view  of  the  character  of  the  neighborhood  its  presence 
there  would  render  it  in  legal  contemplation  a  nuisance.  A  permanent 
injunction  was  granted,  and  the  defendants  appeal. 

The  home  of  the  plaintiff  is  78  feet  from  the  main  building  which  it 
is  proposed  to  use  as  a  hospital.  The  two  houses  face  in  the  same 
direction,  and  each  has  a  number  of  windows  looking  toward  the  other. 
A  15-foot  alley  runs  between  them,  near  which  is  a  small  building  be- 
longing to  the  hospital  property,  formerly  used  for  a  billiard  room. 

TAcc:  Davis  v.  Wliitney,  68  N.  H.  66,  44  Atl.  78  (1894);  Ladd  v.  Brlclc 
Co.,  68  N.  H.  185,  37  Afl.  1041  (1S94).  See  Sanders-Clark  v.  Grovesnor  Man- 
sions Co.,  [1900]  2  Ch.  373. 

A.  lived  in  a  neighborhood  in  which  there  were  several  printing  estab- 
lishments as  well  as  allied  trades.  B.  had  for  several  years  conducted  a 
large  printing  establishment  in  an  adjoining  building.  He  installed  addi- 
tional machinery  which  he  ran  at  night.  The  day  operations  added  some- 
what to  the  noise  of  the  neighborhood ;  the  night  operations  were  an  in- 
novation and  seriously  disturbed  A.'s  sleep.  Held,  A.  was  not  entitled  to 
enjoin  the  running  of  the  additional  machinery  in  the  daytime;  he  was  en- 
titled to  enjoin  its  running  at  night.  Rushmer  v.  Polsue,  [1906]  1  Ch.  D. 
234.     Compare  Austin  v.  Converse,  219  Pa.  3,  67  Atl.  921  (1907). 

A.  was  almost  the  only  resident  in  a  block  otherwise  devoted  to  business 
and  manufactux'ing  purposes.  An  adjoining  building  was  used  as  a  flour 
mill,  causing  dust,  steam,  ashes,  and  soot  to  permeate  A.'s  dwelling,  and 
causing  marked  noise  and  vibration.  Held,  A.  was  not  entitled  to  an  in- 
junction.    Gilbert  v.  Showerman,  23  Mich.  448   (1871). 

6  Part  of  the  opinion  is  omitted. 


22  EIGHTS  INCIDENTAL  TO   POSSESSION  (Part  1 

Two  Other  residences  are  situated  about  90  feet  from  the  hospital 
building,  and  three  others  at  a  distance  of  about  150  feet.  All  the 
houses  in  the  vicinity  are  used  solely  as  dwellings. 

Witnesses  for  the  plaintiff  who  were  familiar  with  real  estate  values 
testified  that  in  their  judgment  the  establishment  of  the  hospital  would 
cause  a  material  depreciation  in  the  rental  and  market  value  of  the  sur- 
rounding property.  Several  physicians  expressed  the  opinion  that 
there  would  be  some  danger  of  the  communication  of  the  disease, 
through  transmission  by  means  of  insects,  and  perhaps  in  other  ways. 
There  was  also  evidence  that  oif ensive  odors  resulting  from  the  disease 
itself  and  from  disinfectants  used  on  account  of  it  might  reach  the 
occupants  of  neighboring  dwellings.  On  behalf  of  the  defendants, 
there  was  testimony  that  none  of  the  anticipated  evils  had  resulted 
from  a  cancer  hospital  formerly  maintained  by  them  under  somewhat 
similar  conditions ;  that  under  proper  management  there  need  be  no 
offensive  odors  about  such  a  place;  and  that  cancer  is  not  contagious 
or  infectious.  Perhaps  the  court  may  take  notice  of  the  prevailing 
view  in  the  medical  profession  upon  the  last  proposition.  From  the 
current  literature  of  the  subject,  it  appears  that  while  it  has  not  been 
proved  to  the  satisfaction  of  the  profession  generally  that  cancer  can 
be  communicated  from  one  individual  to  another,  except  by  the  pro- 
cess of  grafting  or  transplanting  cancerous  tissue,  competent  investi- 
gators are  not  lacking  who  believe  that  it  is  of  parasitic  origin  and  in 
some  degree  infectious.     *     *     * 

In  Baltimore  City  v.  Fairfield  Imp.  Co.,  87  Md.  352,  364,  365,  39  Atl. 
1081,  1084  (40  L.  R.  A.  494,  67  Am.  St.  Rep.  344),  an  injunction 
against  the  placing  of  a  leper  for  care  and  restraint  in  a  residence  neigh- 
borhood was  justified  in  part  upon  grounds  thus  stated  in  the  opinion: 
"Leprosy  is  and  always  has  been,  universally  regarded  with  horror  and 
loathing.  *  *  *  The  horror  of  its  contagion  is  as  deep-seated  to-day  as . 
it  was  more  than  2,000  years  ago  in  Palestine.  There  are  modern  the- 
ories and  opinions  of  medical  experts  that  the  contagion  is  remote  and 
by  no  means  dangerous ;  but  the  popular  belief  of  its  perils  founded 
on  the  Biblical  narrative,  on  the  stringent  provisions  of  the  Mosaic  law 
that  show  how  dreadful  were  its  ravages  and  how  great  the  terror 
which  it  excited,  and  an  almost  universal  sentiment,  the  result  of  a 
common  concurrence  of  thought  for  centuries,  cannot  in  this  day  be 
shaken  or  dispelled  by  mere  scientific  asseveration  or  conjecture.  It  is 
not,  in  this  case,  so  much  a  mere  academic  inquiry  as  to  whether  the 
disease  is  in  fact  highly  or  remotely  contagious;  but  the  question  is 
whether,  viewed  as  it  is  by  the  people  generally,  its  introduction  into  a 
neighborhood  is  calculated  to  do  a  serious  injury  to  the  property  of  the 
plaintiff  there  located." 

Much  the  same  reasoning  may  be  applied  here.  The  question  is  not 
whether  the  establishment  of  the  hospital  would  place  the  occupants 
of  the  adjacent  dwellings  in  actual  danger  of  infection,  but  whether 
they  would  have  reasonable  ground  to  fear  such  a  result,  and  whether, 

,.,  '-  ',  &J(^S  V'-  , 

f\i  'n 


Ch.2) 


AIE  23 


in  view  of  the  general  dread  inspired  by  the  disease,  the  reasonable  en- 
joyment of  their  property  would  not  be  materially  interfered  with  by 
the  bringing  together  of  a  considerable  number  of  cancer  patients  in 
this  place.  However  carefully  the  hospital  might  be  conducted,  and 
however  worthy  the  institution  might  be,  its_mere_£resence,  which 
would  necessarily  be  manifested  in  various  ways,  would  make  the 
neighborhood  less  desirable  for  residence  purposes,  not  to  the  over- 
sensitive alone,  but  to  persons  of  normal  sensibilities.  The  court  con- 
cludes that  upon  these  considerations  the  injunction  was  rightfully 
granted.^     *    *     *  — "^^      "  "" ^ 


HENNESSY  v.  CARMONY. 

(Court  of  Chancery  of  New  Jersey,  1892.     50  N.  J.  Eq.  616,  25  Atl.  374.) 

Pitney,  V.  C.^"  The  object  of  the  bill  is  to  restrain  a  private  nui- 
sance. The  complainant  is  the  owner  of  a  small  lot  of  land,  about 
18  feet  front  and  rear  by  about  96  feet  deep,  in  the  city  of  Camden, 
fronting  on  the  west  side  of  South  Eighth  street,  about  midway  be- 
tween Spruce  street  on  the  north  and  Cherry  street  on  the  south.  Up- 
on this  lot  is  situated  a  small  dweUing  house,  composed  of  a  main  or 
front  part  of  brick,  about  15  feet  front  by  30  feet  deep,  two  stories 
high,  leaving  a  passageway  of  3  feet  on  the  northerly  side,  and  having 
a  wooden  extension  or  kitchen  about  10  by  35  feet,  two  stories  high,  in 

9Acc.:  Haggart  v.  Stehlin,  137  Ind.  43,  35  N.  E.  997,  22  L.  R.  A.  577 
(1892)  (licensed  saloon) ;  Saier  v.  Joy,  198  Jlich.  295,  164  N.  W.  507,  L.  R.  A. 
1918A,  823  (1917)  (undertaker);  Barth  v.  Hospital,  196  Mich.  642,  163  N. 
W.  62  (1917)  (insane  asylum);  Everett  v.  Paschall,  61  Wash.  47,  111  Pac. 
879,  31  L.  R.  A.  (N.  S.)  827,  Ann.  Cas.  1912B,  1128  (1910)  (sanitarium) ;  Dens- 
more  V.  Evergreen  Camp,  61  Wash.  230,  112  Pac.  255,  31  L.  R.  A.  (N.  S.)  608, 
Ann.  Cas.   1912B,  1206   (1910)    (undertaker). 

A.  sought  an  injunction  to  prevent  B.  from  establishing  a  smallpox  hospi- 
tal within  2,000  feet  of  A.'s  house.  The  injunction  was  refused.  "The 
question  to  be  decided  was  whether  there  was  an  appreciable  injury  to  tlie 
healthiness  of  the  plaintiff's  property.  The  plaintiffs  must  make  out  that 
there  was  a  real  danger,  otherwise,  however  much  they  might  feel  the  hospi- 
tal to  be  an  annoyance,  they  could  not  get  an  injunction."  Fleet  v.  Metro- 
politan Asylum  Board,  2  T.  L.  R.  361  (1886).  Ace:  Westcott  v.  Middleton,  43 
N.  J.  Eq.  478,  11  Atl.  490  (18S7)  (undertaker) ;  City  of  Northheld  v.  Board, 
etc.,  85  N.  J.  Eq.  47,  95  Atl.  745  (1915)  (tuberculosis  hospital) ;  Heaton  v. 
Packer,  131  App.  Div.  812.  116  N.  Y.  Supp.  46  (1909)  (insane  asylum). 

A.  maintained  within  .50  feet  of  B.'s  house,  and  in  full  view  irom  the 
windows  thereof,  a  breeding  place  for  stallions  and  jacks,  where  the  animals 
were  engaged  daily.  Held,  B.  is  entitled  to  enjoin  the  conduct  of  this  busi- 
ness by  A.  in  this  place.  Hay  den  v.  Tucker,  37  Mo.  214  (1866) ;  Farrell  v. 
Cook,  16  Neb.  483,  20  N.  W.  720,  49  Am.  Rep.  721   (1884). 

A.  erected  on  his  land,  immediately  opposite  the  windows  of  B.'s  parlor, 
and  about  50  feet  tlierefrom,  a  stable,  pig  sty,  and  privy,  all  of  which  he  used. 
Held,  B.  was  not  entitled  to  enjoin  their  use,  e.vcept  in  so  far  as  the  noise 
or  smells  therefrom  amounted  to  a  nuisance.  Trulock  v.  Merte,  72  Iowa 
510,  34  N.  W.  307  (1887).  See,  also,  Quintini  v.  Board  of  Aldermen  64 
Miss.  483,  1  South.  625,  60  Am.  Rep.  62  (18S6) ;  Lane  v.  Concord,  70  N  H. 
485,  49  Atl.  687,  85  Am.  St.  Rep.  643  (1900). 

10  Part  of  the  opinion  is  omitted. 

.  0 


]  I 


24  RIGHTS  INCIDENTAL  TO  POSSESSION  (Part  1 

the  rear.  The  rear  of  this  structure  is  3IV2  feet  from  the  rear  line  of 
the  lot.  The  ground  lying  to  the  north  and  west  of  this  lot  is  owned  by 
the  defendants,  or  one  of  them,  and  is  used  for  a  dye  works  for  color- 
ing cotton  and  other  materials.  In  the  process  of  dyeing,  it,  of  course, 
becomes  necessary  to  dry  those  materials,  and  in  order  to  hasten  this 
process  use  is  made  of  two  machines,  called  in  the  evidence  "whizzers," 
into  which  the  wet  material  is  placed,  and  which,  by  being  revolved  at 
great  speed,  drive  out  the  water  by  centrifugal  force.  These  machines 
are  driven  by  two  small  engines  attached  to  them  directly,  without  in- 
termediate gearing,  so  that  the  engines  must  make  the  same  number  of 
revolutions  as  do  the  whizzers,  and  the  more  rapid  the  revolution,  the 
more  rapid  the  process  of  drying. 

The  principal  subject  of  htigation  was  as  to  the  effect  upon  the  com- 
plainant's premises  of  these  machines.  There  were  other  matters  com- 
plained of,  some  of  which  were  remedied  about  the  time  the  bill  was 
filed,  and  such  as  were  not  remedied  are  capable  of  being  remedied 
without  serious  inconvenience  to  the  defendants.    *    *    * 

Fourth,  Complainant  contends  that  the  running  of  the  centrifugal 

machines  before  mentioned  has  the  effect  of  making  a  disagreeable 

noise,  and  also  of  jarring  and  shaking  the  house,  so  that  the  windows 

and  doors  rattle,  the  pieces  of  table  crockery  rattle  and  move  upon 

one  another  on  the  shelves,  and  the  walls  are  more  or  less  cracked. 
*    *    * 

With  regard  to  the  alleged  noise  and  vibration,  and  the  right  of  the 
complainant  to  relief  on  that  score  if  the  vibrations  be  established,  more 
troublesome  questions  arise.  The  proof  is  clear  that  when  these  ma- 
chines, called  in  the  evidence  "whizzers,"  were  first  put  in,  s6me  years 
ago,  they  did  produce  a  serious  vibration  in  the  neighboring  buildings. 
The  factory  is  situate  in  the  easterly  center  of  the  block,  which  is  ob- 
long, and  bounded  north  by  Spruce  street,  east  by  Eighth  street  and 
south  by  Cherry  street,  and  the  engines  are  about  equidistant — say  110 
feet  to  120  feet — from  each  of  these  streets,  and  about  30  feet  from 
the  rear  of  complainant's  lot.  On  the  west  of  the  factory  is  a  church 
and  a  public  schoolhouse,  and  the  latter  is  more  than  150  feet  distant 
from  the  machines.  So  great  was  the  vibration  they  produced  at  the 
schoolhouse  that  complaint  was  made  by  the  school  authorities,  and 
the  defendants  attempted  to  remedy  the  nuisance  by  constructing  a 
solid  foundation  of  masonry,  extending  some  six  feet  below  the  sur- 
face, and  placing  the  machines  upon  it.  It  is  also  proven  by  one  of 
the  defendants'  witnesses,  who  lived  in  the  complainant's  house  at  and 
before  the  construction  of  this  foundation,  that  complainant's  house 
was  seriously  shaken  by  the  machines.  This  solid  foundation,  put  in 
about  three  years  before  bill  filed,  seems  to  have  remedied  the  difficulty 
so  far  as  the  schoolhouse  was  concerned,  and,  under  ordinary  circum- 
stances, one  would  suppose  that  the  result  would  be  general,  and  in- 
clude buildings  as  near  as  complainant's  dwelling.  But  the  evidence 
compels  me  to  come  to  a  contrary  conclusion.    ♦    *    * 


Ch.  2) 


AIR 


The  evidence  of  the  complainant  and  his  family  is  strong  as  to  the 
noise  and  vibration  in  his  house,  and  its  effect,  as  above  stated,  in  caus- 
ing the  windows  to  rattle  and  the  dishes  to  rattle  and  move  upon  their 
shelves,  the  doors  to  swing  open,  and  the  walls  to  crack.    *    *    * 

The  serious  and  troublesome  question  in  the  case  is  as  to  whether  the 
vibration  established  is  of  such  a  degree  as  to  entitle  the  complainant 
to  the  aid  of  this  court.  Upon  reason  and  authority  I  think  there  is  a 
clear  distinction  between  that  class  of  nuisances  which  aft'ect  air  and 
light  merely,  by  way  of  noises  and  disagreeable  gases,  and  obstruction 
of  light,  and  those  which  directly  affect  the  land  itself,  or  structures 
upon  it.  Light  and  air  are  elements  which  mankind  enjoy  in  com- 
mon, and  no  one  person  can  have  an  exclusive  right  in  any  particular 
portions  of  either;  and,  as  men  are  social  beings,  and  by  common  con- 
sent congregate,  and  need  fires  to  make  them  comfortable  and  to  cook 
their  food,  it  follows  that  we  cannot  expect  to  be  able  to  breathe  air 
entirely  free  from  contamination,  or  that  our  ears  shall  not  be  invaded 
by  unwelcome  sounds.  Thus,  my  neighbor  may  breathe  upon  my  land 
from  his,  and  the  smoke  from  his  house  fire  and  the  vapor  from  his 
kitchen  may  come  onto  my  land,  or  he  may  converse  in  audible  tones 
while  standing  near  the  dividing  line,  and  all  without  giving  me  any 
right  to  complain.  So  my  neighbor  and  I  may  build  our  houses  on  the 
line  between  our  properties,  or  have  a  party  wall  in  common,  so  that 
we  are  each  liable  to  hear  and  be  more  or  less  disturbed  by  the  noise 
of  each  other's  family,  and  cannot  complain  of  it.  In  all  these  matters 
of  the  use  of  the  common  element  air  we  give  and  take  something  of 
injury  and  annoyance,  and  it  is  not  easy  to  draw  tlie  line  between  rea- 
sonable and  unreasonable  use  in  such  cases,  affecting,  as  they  do,  main- 
ly the  comfort,  and,  in  a  small  degree  only,  the  health,  of  mankind.  In 
attempting  to  draw  this  line,  we  must  take  into  consideration  the  char- 
acter, vv.hich  has  been  impressed  upon  the  neighborhood  by  what  may  be 
called  the  "common  consent"  of  its  inhabitants.  But  when  we  come 
to  deaf  with  what  is  individual  property,  in  which  the  owner  has  an 
exclusive  right,  the  case  is  different.  While  my  neighbor  may  stand 
by  my  fence  on  his  own  lot,  and  breathe  across  it  over  my  land,  and 
may  permit  the  smoke  and  smell  of  his  kitchen  to  pass  over  it,  and  may 
talk,  laugh,  and  sing  or  cry,  so  that  his  conversation  and  hilarity  or 
grief  is  heard  in  my  yard,  he  has  no  right  to  shake  my  fence  ever  so 
little,  or  to  throw  sand,  earth,  or  water  upon  my  land  in  ever  so  small 
a  quantity.  To  do  so  is  an  invasion  of  property,  and  a  trespass,  and 
to  continue  to  do  so  constitutes  a  nuisance ;  and,  if  he  may  not  shake 
my  fence  or  my  house  by  force  directed  immediately  against  them,  I 
know  of  no  principle  by  which  he  may  be  entitled  to  do  it  by  indirect 
means. 

I  think  the  distinction  between  the  two  classes  of  injury  is  clear.  At 
the  same  time  it  would  seem  that  it  has,  in  appearance  at  least,  been 
frequently  overlooked  by  able  and  careful  judges,  and  the  same  rules 
as  to  the  degree  of  the  injury  which  will  justify  judicial  interference 


26  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part  1 

applied  to  each  class.  The  distinction  between  the  two  classes  of  in- 
juries was  pointed  out  by  Lord  Westbury  in  Smelting  Co.  v.  Tipping, 
11  H.  L.  Cas.  642,  11  Jur.  (N.  S.)  785,  116  E.  C.  L.  1093.  The  charge 
of  the  judge  under  review  is  given  in  full  in  the  report  in  the  Jurist, 
and  in  the  addenda  to  4  Best  &  S.,  printed  in  116  E.  C.  L.  1093,  while  a 
mere  abstract  is  given  in  the  report  in  the  queen's  bench,  (4  Best  &  S. 
608),  and  in  the  official  report  in  the  house  of  lords,  (11  H.  L.  Cas.) 
One  of  the  headnotes  of  the  official  report  (11  H.  L.  Cas.)  is  this: 
"There  is  a  distinction  between  an  action  for  a  nuisance  in  respect  of 
an  act  producing  a  material  injury  to  property  and  one  brought  in  re-' 
spect  of  an  act  producing  personal  discomfort.  As  to  the  latter,  a  per- 
son  must,  in  the  interest  of  the  public  generally,  submit  to  the  discom- 
fort of  the  circumstances  of  the  place,  and  the  trades  carried  on  around 
him.    As  to  the  former,  the  same  ruling  would  not  apply." 

Lord  Westbury,  in  moving  the  judgment  of  affirmance,  said:  "In 
matters  of  this  description  it  appears  to  me  that  it  is  a  very  desirable 
thing  to  mark  the  difference  between  an  action  brought  for  a  nuisance 
upon  the  ground  that  the  alleged  nuisance  produces  material  injury 
to  the  property  and  an  action  brought  for  a  nuisance  on  the  ground  that 
the  thing  alleged  to  be  a  nuisance  is  productive  of  sensible  personal  dis- 
comfort. With  regard  to  the  latfer,  namely,  the  personal  inconvenience 
and  interference  with  one's  enjoyment,  one's  quiet,  one's  personal  free- 
dom, anything  that  discomposes  or  injuriously  affects  the  'senses  or 
the  nerves,  whether  that  may  or  may  not  be  denominated  a  'nuisance,' 
must  undoubtedly  depend  greatly  on  the  circumstances  of  the  place 
where  the  thing  complained  of  actually  occurs.  If  a  man  lives  in  a 
town,  it  is  necessary  that  he  should  subject  himself  to  the  consequences 
of  those  operations  of  trade  which  may  be  carried  on  in  his  immediate 
locality  which  are  actually  necessary  for  trade  and  commerce,  and  also 
for  the  enjoyment  of  property,  and  for  the  benefit  of  the  inhabitants 
of  the  town  and  of  the  public  at  large.  If  a  man  lives  in  a  street  where 
there  are  numerous  shops,  and  a  shop  is  opened  next  door  to  him, 
which  is  carried  on  in  a  fair  and  reasonable  way,  he  has  no  ground  for 
complaint  because  to  himself  individually  there  may  arise  much  dis- 
comfort from  the  trade  carried  on  in  that  shop.  But  when  an  occupa- 
tion is  carried  on  by  one  person  in  the  neighborhood  Of  another,  and 
the  result  of  that  trade  or  occupation  or  business  is  a  material  jnjury  to 
property,  then  there  unquestionably  arises  a  very  different  considera- 
tion. I  think  that  in  a  case  of  that  description  the  submission  wliich  is 
required  from  persons  living  in  society  to  that  amount  of  discomfort 
which  may  be  necessary  for  the  legitimate  and  free  exercise  of  the 
trade  of  their  nefghbors  would  not  apply  to  circumstances  the  immedi- 
ate result  of  which  is  sensible  injury  to  the  value  of  the  property." 
This  opinion  was  expressly  concurred  in  by  the  other  judges  who  sat 
in  that  case. 

The  sole  question  before  the  court  was  whether  the  defendant  below 
Cthe  plaintiff  in  error)  had  any  reason  to  complain  of  the  charge  of  the 


Ch.2)  AIB  27 

judge,  and  not  whether,  if  the  verdict  had  been  for  the  defendant,  the 
plaintiff  below  might  not  have  taken  exception  to  it;  and  the  effect  of' 
the  judgment  of  Lord  Westbury  was — as  it  seems  to  me — to  hold  that 
the  charge  was  too  favorable  to  the  defendant  below,  who  was  plaintiff 
in  error.  This  aspect  of  the  case  was  noticed  and  pointed  out  by  Lord 
Cockburn  in  the  queen's  bench,  who  said  (4  Best  &  S.  615)  that,  if  the 
summing  up  of  the  judge  "was  wrong  in  any  respect,  the  error  is  one 
of  which  the  other  side  is  the  only  party  entitled  to  complain."  It  is  not 
quite  safe,  therefore,  as  it  seems  to  me,  to  rely  upon  the  charge  of  the 
judge  there  under  review  as  an  accurate  statement  of  the  law,  without 
taking  into  consideration  this  circumstance.  In  my  judgment,  the  dis- 
tinction taken  by  Lord  Westbury  in  that  case  is  founded  in  reason, 
and  should  be  observed ;  and,  in  looking  at  the  language  used  by  tlie 
judges  in  other  cases,  we  ought  to  observe  whether  it  was  used  in  ref- 
erence to  a  case  of  injury  through  the  air  by  noise  or  offensive  odor,  or 
whether  it  was  one  affecting  the  land  itself.  Thus,  in  Sturges  v.  Bridg- 
man,  (1879,)  11  Ch.  Div.  852,  where  the  injunction  was  granted,  the 
case  was  one  mainly  of  noise,  and,  although  the  element  of  vibration 
was  mentioned,  the  judges  dealt  altogether  with  the  matter  of  noise. 
The  same  may  be  said  of  Gaunt  v.  Fynney,  (1872,)  L.  R.  8  Ch,  App.  9, 
where  the  injunction  was  refused. 

The  question  here,  then,  is  not  so  much  whether  the  effect  of  the 
noise  and  vibration  caused  by  the  rapid  revolution  of  the  defendants' 
machines  is  to  render  complainant's  house  less  comfortable  to  live  in,, 
(though  that  is  a  matter  to  be  considered,)  but  rather  whether  the  com- 
plainant's land  and  dwelling  is  sensibly  and  injuriously  affected  by  the 
vibration.  If  it  be  so,  then  it  seems  to  me  he  ought,  in  the  absence  of 
any  equitable  defense,  to  be  entitled  to  relief.  The  familiar  gfound  on 
which  the  extraordinary  power  of  the  court  is  invoked  in  such  cases  is 
that  it  is  inequitable  and  unjust  that  the  injured  party  should  be  com- 
pelled to  resort  to  repeated  actions  at  law  to  recover  damages  for  his 
injury,  which,  after  all,  in  this  class  of  cases,  are  incapable  of  measure- 
ment; and  I  presume  to  add  the  further  ground  that  in  this  country 
such  recovery  must  result  in  giving  the  wrongdoer  a  power  not  per- 
mitted by  our  system  of  constitutional  government,  viz.,  to  take  the  in- 
jured party's  property  for  his  private  purposes  upon  making,  from  time 
to  time,  such  compensation  as  the  whims  of  a  jury  may  give.  This 
ground  of  equitable  action  is  of  itself  sufficient  in  those  cases  where 
the  injury,  though  not  irreparable,  promises  to  be  repeated  for  an  in- 
definite period,  and  so  is  continuous  in  the  sense  that  it  will  be  perse- 
vered in  indefinitely.  See  Ross  v.  Butler,  19  N.  J.  Eq.  302,  97  Am. 
Dec.  654. 

Several  matters  have  at  various  times  and  on  various  occasions  been 
held  to  stand  in  the  way  of  granting  an  injunction  in  this  class  of  cas- 
es. The  principal  one  is  what  may  be  called  the  "de  minimis,"  "bal- 
ance of  injury,"  and  "discretion"  doctrine.  It  has  been  said  and  held  on 
some  occasions  that,  where  the  injury  to  the  complainant  by  the  con- 


28  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part  1 

tinuance  of  the  nuisance  is  small,  and  the  injury  to  the  defendant  by 
its  discontinuance  is  great,  the  court  will  consider  that  circumstance, 
and,  if  the  balance  is  greatly  against  the  complainant,  will,  in  the  exer- 
cise of  a  sound  discretion,  refuse  the  injunction,  and  leave  the  com- 
plainant to  his  remedy  at  law.    *    *    * 

I  have  never  been  able  to  see  how  the  question  of  the  right  of  the 
complainant  to  an  injunction  on  final  hearing  could  ever  be  a  matter 
properly  resting  in  the  "discretion"  of  the  chancellor,  as  I  understand 
the  force  of  that  word  in  that  connection.  If  by  "discretion"  is  here 
meant  that  the  judge  must  be  discreet,  and  must  act  with  discretion, 
and  discriminate,  and  take  into  consideration  and  give  weight  to  each 
circumstance  in  the  case  in  accordance  with  its  actual  value  in  a  court 
of  equity,  tlien  I  say  that  that  is  just  what  he  must  do  in  every  case 
that  comes  under  his  consideration ;  no  more  and  no  less ;  and  that  is 
the  sense  in  which  I  understand  the  word  is  used  in  Demarest  v.  Hard- 
ham.  But  if  the  word  "discretion,"  in  this  connection,  is  used  in  its 
secondary  sense,  and  by  it  is  meant  that  the  chancellor  has  the  liberty 
and  power  of  acting,  in  finally  settling  property  rights,  at  his  discretion, 
without  the  restraint  of  the  legal  and  equitable  rules  governing  those 
rights,  then  I  deny  such  power.  It  seems  to  me  that  the  true  scope  of 
the  exercise  of  this  latter  sort  of  discretion  in  the  judicial  field  is  found 
in  those  matters  which  affect  procedure  merely,  and  not  the  ultimate 

^jprjj^  11        *        *        ^ 

The  result  of  a  careful  review  of  the  evidence  upon  my  mind  is  to 
lead  me  to  the  conclusion  that  the  degree  of  injury  is  such  as  to  en- 
title the  complainant  to  damages  in  an  action  at  law,  with  the  result 
that  he  is  entitled  to  an  injunction  in  this  court.  The  injury,  to  be  ac- 
tionable,"  must  be  sensible  and  appreciable,  as  distinguished  from  one 
merely  fanciful,  and  in  a  case  like  this  I  assume,  for  present  purposes, 
that  it  must  have  the  effect  of  rendering  the  premises  less  desirable,  and 
so  less  valuable  for  ordinary  use  and  occupation.  Now,  it  seems  to  me 
that  a  vibration  that  causes  the  windows  and  doors  of  a  house  to  rattle 
in  their  casings,  and  dishes  on  the  shelves  to  rattle  and  move  on  one 
another,  and  the  walls  to  crack,  and  is  distinctly  felt  by  persons  in  the 
house,  would  have  such  effect,  and  is  therefore  actionable;  while 
smoke  and  noise  might  have  a  similar  effect  in  rendering  the  house  less 
desirable  without  being  actionable,  because  the  degree  of  discomfort 
would  not  be  sufficiently  great  to  reach  the  standard  (if,  indeed,  any- 
standard  has  been  established)  applied  to  that  class  of  injuries.  See 
Walter  v.  Selfe,  4  De  Gex  &  S.  318,  20  Law  J.  Ch.  434,  15  Jur.  416; 
Ross  V.  Butler,  19  N.  J.  Eq.  294,  299,  306,  97  Am.  Dec.  654.  There  is> 
evidence  tending  to  show  that  complainant  made  little  or  no  complaint 
with  regard  to  this  vibration  until  about  the  time  the  bill  was  filed,  when 
the  invasion  of  his  property  rights  by  hanging  the  stay  wire  over  his 
land,  by  driving  the  filthy  steam  from  the  sewer  into  his  kitchen,  and 

iiAcc.  Broadbent  v.  Imperial  Gas  Co.,  7  De  G..  M.  &  G.  4oG  (185C). 


Ch.  2)  AIR  29 

the  sprinkling  of  spray  over  his  back  yard,  seemed  to  combine  to  exas- 
perate him.  This  apparent  acquiescence  can  only  be,  used  as  evidence 
that  the  complainant  did  not  consider  the  vibration  as  serious,  but  I 
think  that  is  not  sufficient  in  that  regard  to  overcome  the  weight  of 
the  evidence  that  his  house  is  injured. 

I  will  advise  a  decree  that  the  defendant  be  restrained  from  so  using 
his  machines  as  to  cause  the  complainant's  house  to  vibrate,  and  also 
from  allowing  the  water  and  spray  from  the  exhaust  of  his  engines  to 
come  onto  the  complainant's  lands. ^^ 


MADISON  et  al.  .v.  DUCKTOWN  SULPHUR,  COPPER  &  IRON 

CO.  et  al. 

McGHEE  et  al.  v.  TENNESSEE  COPPER  CO.  et  al. 

EARNER  v.   TENNESSEE   COPPER   CO. 

(Supreme  Court  of  Tennessee,  1904.     113  Tenn.  331,  83  S.  W.  658.) 

Bill  for  an  injunction.  [The  defendants  were  large  copper  smelting 
companies.    The  complainants  were  small  farmers.] 

Neil,  J.^^  *  *  *  All  of  the  complainants  have  owned  their 
several  tracts  since  a  time  anterior  to  the  resumption  of  the  copper  in- 
dustry at  Ducktown  in  1891,  and  have  resided  on  them  during  this 
period,  with  the  exception  of  Avery  McGhee,  who  worked  for  one  of 
the  defendant  companies  a  considerable  time,  and  Margaret  Madison, 
who  removed  to  Snoddy,  in  Rhea  county,  two  or  three  years  ago. 

The  general  effect  produced  by  the  smoke  upon  the  possessions  and 
families  of  the  complainants  is  as  follows,  viz.: 

Their  timber  and  crop  interests  have  been  badly  injured,  and  they 

12  For  other  cases,  where  the  damage  to  property  was  held  to  constitute  a 
nuisance,  see  Susquehanna  Fertilizer  Co.  v.  Spangler,  86  Md.  562,  39  Atl. 
270,  63  Am.  St.  Rep.  533  (1898)  (action  at  law) ;  Campbell  v.  Seaman,  63  N. 
T.  568,  20  Am.  Kep.  567  (1876)    (granting  an  injunction). 

Compare:     Downing  v.  Elliot,  182  Mass.  28,  64  N.  E.  201  (1902). 

"The  fair  interpretation  of  the  plaintia'^  bill  is  that  the  floor  above  its 
rooms  naturally  and  properly  has  holes  in  it,  and  that  the  defendants  know- 
ingly carry  on  their  business  in  such  a  way  as  to  send  fumes  of  acid  and 
large  quantities  of  sand  through  these  holes  upon  the  plaintiffs  premises,  and 
thereby  to  corrode  and  spoil  its  machinery  and  goods. 

"As  between  adjoining  proprietors,  one  of  thorn  has  no  right  as  against 
the  others  to  do  what  is  complained  of  here,  and  it  would  be  no  answer  to, 
an  action  to  say  that  the  plaintiff  might  have  shut  his  windows.  There 
would  be  no  need  to  allege  in  terms  that  the  business  was  unsuitable  to  be 
carried  on  in  that  place,  or  that  there  was  negligence  in  the  mode  of  carry- 
ing it  pn.  As  the  damage  was  a  manifest  consequence  of  the  defendants' 
business,  the  fact  that  they  could  not  help  it  if  they  carried  on  that  business 
would  be  immaterial.  See  the  form  of  declaration  in  Tipping  v.  St.  Helen's 
Smelting  Co.,  4  B.  &  S.  608,  and  St.  Helen's  Smelting  Co.  v.  Tipping,  11  H. 
L.  Cas.  642."  Holmes,  J.,  in  Boston  Ferrule  Co.  v.  Hills,  159  Mass.  147,  149, 
34  N.  E.  85,  20  L.  R.  A.  844  (1893). 

13  Part  of  the  opinion  is  omitted. 


30 


RIGHTS  INCIDENTAL  TO   POSSESSION 


(Part  1 


have  been  annoyed  and  discommoded  by  the  smoke  so  that  the  com- 
plainants are  prevented  from  using  and  enjoying  their  farms  and 
homes  as  they  did  prior  to  the  inauguration  of  these  enterprises.  The 
smoke  makes  it  impossible  for  the  owners  of  farms  within  the  area  of 
the  smoke  zone  to  subsist  their  families  thereon  with  the  degree  of 
comfort  they  enjoyed  before.  They  cannot  raise  and  harvest  their  cus- 
tomary crops,  and  their  timber  is  largely  destroyed.    *     *     *    ■ 

The  Court  of  Chancery  Appeals  finds  that  the  defendants  are  con- 
ducting and  have  been  conducting  their  business  in  a  lawful  way,  with- 
out any  purp>ose  or  desire  to  injure  any  of  the  complainants ;  that  they 
have  been  and  are  pursuing  the  only  known  method  by  which  these 
plants  can  be  operated  and  their  business  successfully  carried  on ;  that 
the  open-air  roast  heap  is  the  only  method  known. to  the  business  or 
to  science  by  means  of  which  copper  ore  of  the  character  mined  by 
the  defendants  can  be  reduced;  that  the  defendants  have  made  every 
effort  to  get  rid  of  the  smoke  and  noxious  vapors,  one  of  the  defend- 
ants having  spent  $200,000  in  experiments  to  this  end,  but  without 
result. 

It  is  to  be  inferred  from  the  description  of  the  locality  that  there  is 
no  place  more  remote  to  which  the  operations  referred  to  could  be 
transferred.    *    *    * 

There  can  be  no  doubt  that  the  facts  stated  make  out  a  case  of  nui- 
sance, for  which  the  complainants  in  actions  at  law  would  be  entitled  to 
recover  damages.     *     *     * 

The  following  general  propositions  seem  to  be  established  by  the  au- 
thorities: If  the  case  made  out  by  the  pleadings  and  evidence  show 
with  sufficient  clearness  and  certainty  grounds  for  equitable  relief  it 
will  not  be  denied  because  the  persons  proceeded  against  are  engaged 


in  a  lawful  business  (" 


Tipping  V,  St.  Helens  Smelting  Co.,  11 


H.  L.  Cas.  642 ;  Atty.  Gen.  v.  Colny  Hatch  Lunatic  Asylum,  4  L.  R. 
Ch.  App.  478;  Crossly  v.  Lightowler,  3  L.  R.  Eq.  279,  2  L.  R.  Ch. 
App.  478;  *  *  *  Robinson  v.  Baugh,  31  Mich.  291;  Susquehanna 
Fertilizer  Co.  v.  Malone,  73  Md.  268,  282,  20  Atl.  900,  9  L.  R.  A.  7Z7 , 
25  Am.  St.  Rep.  595),  or  because  the  works  complained  of  are  located 
in  a  convenient  place,  if  that  place  be  one  wherein  an  actionable  injury 
is  done  to  another  (Susquehanna  Fertilizer  Co.  v.  Malone,  Th  Md.  268, 
277,  278,  20  Atl:  900,  9  L.  R.  A.  7Z7,  25  Am.  St.  Rep.  595,  and  cases 
cited;  Tipping  v.  St.  Helens  Smelting  Co.,  supra);  nor  will  the  exist- 
ence of  another  nuisance  of  a  similar  character  at  the  same  place  fur- 
nish a  ground  for  denying  relief  if  it  appear  that  the  defendant  has 
sensibly  contributed  to  the  injury  complained  of  (Crossly  v.  Lightowler, 
supra    *     *     *). 

But  there  is  one  other  principle  which  is  of  controlling  influence  in 
this  department  of  the  law,  and  in  the  light  of  which  the  foregoing 
principle  must  be  weighed  and  applied.  This  is  that  the  granting  of 
an  injunction  is  not  a  matter  of  absolute  right,  but  rests  m  the  sound 
discretion  of  the  court,  to  be  determined  on  a  consideration  of  all  of 


^h.  2)  AIR  31 

the  special  circumstances  of  each  case,  and  the  situation  ^nd  surround- 
ings of  the  parties,  with  a  view  to  effect  the  ends  of  justice. 

A  judgment  for  damages  in  this  class  of  cases  is  a  matter  of  absolute 
right,  where  injury  is  shown.  A  decree  for  an  injunction  is  a  matter  of 
sound  legal  discretion,  to  be  granted  or  withheld  as  that,  discretion 
shall  dictate,  after  a  full  and  careful  consideration  of  every  element  ap- 
pertaining to  the  injury.     *     *     * 

The  question  noAv  to  be  considered  is,  what  is  the  proper  exercise  of 
discretion,  under  the  facts  appearing  in  the  present  case?  Shall  the 
complainants  be  granted,  in  the  way  of  damages,  the  full  measure  of  re- 
lief to  which  their  injuries  entitle  them,  or  shall  we  go  further,  and 
grant  their  request  to  blot  out  two  great  mining  and  manufacturing 
enterprises,  destroy  half  of  the  taxable  values  of  a  county,  and  drive 
more  than  10,000  people  from  their  homes  ?  We  think  there  can  be  no 
doubt  as  to  what  the  true  answer  to  this  question  should  be. 

In  order  to  protect  by  injunction  several  small  tracts  of  land,  aggre- 
gating in  value  less  than  $1,000,  we  are  asked  to  destroy  other  property 
worth  nearly  $2,000,000,  and  wreck  two  great  mining  and  manufac- 
turing enterprises,  that  are  engaged  in  work  of  very  great  importance, 
not  only  to  their  owners,  but  to  the  state,  and  to  the  whole  country  as 
well,  to  depopulate  a  large  town,  and  deprive  thousands  of  working 
people  of  their  homes  and  livelihood,  and  scatter  them  broadcast.  The 
j:esult_would^e^j)ractically  a  confiscation  of  the  property  of  the  de- 
fendants ^or  the  benefit  of  the  complainants — an  appropriation  without 
compensation.  The  defendants  cannot  reduce  their  ores  in  a  manner 
different  from  that  they  are  now  employing,  and  there  is  no  more  re- 
mote place  to  which  they  can  remove.  The  decree  asked  for  would  de- 
prive them  of  all  of  their  rights.  We  appreciate  the  argument  based 
on  the  fact  that  the  homes  of  the  complainants  who  live  on  the  small 
tracts  of  land  referred  to  are  not  so  comfortable  and  useful  to  their 
owners  as  they  were  before  they  were  affected  by  the  smoke  complain- 
ed of,  and  we  are  deeply  sensible  of  the  truth  of  the  propcfsition  that 
no  man  is  entitled  to  any  more  rights  than  another  on  the  ground  that 
he  has  or  owns  more  property  than  that  other.  But  in  a  case  of  con- 
flicting rights,  where  neither  party  can  enjoy  his  own  without  in  some 
measure  restricting  the  liberty  of  the  other  in  the  use  of  property,  the 
law  must  make  the  best  arrangement  it  can  between. the  contending 
parties,  with  a  view  to  preserving  to  each  one  the  largest  measure  of 
liberty  possible  under  the  circumstances.  We  see  no  escape  from  the 
conclusion  in  the  present  case  that  the  only  proper  decree  is  to  al- 
low the  complainants  a  reference  for  the  ascertainment  of  damages, 
and  that  the  injunction  must  be  denied  to  them.**     *     *     * 

14  Ace:  Richard's  Appeal,  57  Pa.  105,  9S  Am.  Dec.  202  (1S68) ;  Bliss  v. 
Anaconda  Copper  Co.  (C.  C.)  167  Fed.  342  (1909).  Compare  Daniels  v.  Keo- 
liuk  Waterworks,  61  Iowa,  549,  16  N.  W.  705  (1S83) ;  Shelter  v.  London  Electric 
Lighting  Co.,  [1S95]  1  Ch.  D.  2S7. 


32  RIGHTS  INCIDENTAL  TO   POSSESSION  i^^^  ^ 

STURGES  V.  BRIDGMAN. 

(Chancery  Division,  1879.    L.  R.  11  Ch.  Div.  852.) 

Thi;sige;r,  L.  J.,^"^  delivered  the  judgment  of  the  Court  (JameSs, 
Baggallay,  and  Thesiger,  L.  JJ.)  as  follows : 

The  defendant  in  this  case  is  the  occupier,  for  the  purpose  of  his 
business  as  a  confectioner,  of  a  house  in  Wigmore  street.  In  the  rear 
of  the  house  is  a  kitchen,  and  in  that  kitchen  there  are  now,  and  have 
been  for  over  twenty  years,  two  large  mortars  in  which  the  meat  and 
other  materials  of  the  confectionery  are  pounded.  The  plaintiff,  who 
is  a  physician,  is  the  occupier  of  a  house  in  Wimpole  street,  which 
until  recently  had  a  garden  at  the  rear,  the  wall  of  which  garden  was 
a  party  wall  between  the  plaintiff's  and  the  defendant's  premises,  and 
formed  the  back  wall  of  the  defendant's  kitchen.  The  plaintiff  has, 
however,  recently  built  upon  the  site  of  the  garden  a  consulting  room, 
one  of  the  side  walls  of  which  is  the  wall  just  described.  It  has  been 
proved  that  in  the  case  of  the  mortars,  before  and  at  the  time  of  action 
brought,  a  noise  was  caused  which  seriously  inconvenienced  the  plain- 
tiff in  the  use  of  his  consulting  room,  and  which,  unless  the  defendant 
had  acquired  a  right  to  impose  the  inconvenience,  would  constitute  an 
actionable  nuisance.  The  defendant  contends  that  he  had  acquired  the 
right,  either  at  common  law  or  under  the  Prescription  Act,  by  uninter- 
rupted user  for  more  than  twenty  years. 

In  deciding  this  question  one  more  fact  is  necessary  to  be  stated. 
Prior  to  the  erection  of  the  consulting  room  no  material  annoyance  or 
inconvenience  was  caused  to  the  pfaintiff  or  to  any  previous  occupier 
of  the  plaintiff's  house  by  what  the  defendant  did.  It  is  true  that  the 
defendant  in  the  seventh  paragraph  of  his  affidavit  speaks  of  an  invalid 
lady  who  occupied  the  house  upon  one  occasion,  about  thirty  years  be- 
fore, requesting  him  if  possible  to  discontinue  the  use  of  the  mortars  be- 
fore eight  o'clock  in  the  morning ;  and  it  is  true  also  that  there  is  some 
evidence  of  the  garden  wall  having  been  subjected  to  vibration,  but 
this  vibration,  even  if  it  existed  at  all,  was  so  slight,  and  the  complaint, 
if  it  could  be  called  a  complaint,  of  the  invalid  lady,  and  can  be  looked 
upon  as  evidence,  was  of  so  trifling  a  character,  that,  upon  the  maxim 
"De  minimis  non  curat  lex,"  we  arrive  at  the  conclusion  that  the  de- 
fendant's acts  would  not  have  given  rise  to  any  proceedings  either  at 
law  or  in  equity.  Here  then  arises  the  objection  to  the  acquisition  by 
the  defendant  of  any  easement.  That  which  was  done  by  him  was  in 
its  nature  such  that  it  could  not  be  physically  interrupted ;  it  could  not 
at  the  same  time  be  put  a  stop  to  by  action.  Can  user  which  is  neither 
preventible  nor  actionable  found  an  easement?  We  think  not.  The 
question,  so  far  as  regards  this  particular  easement  claimed,  is  the 
same  question  whether  the  defendant  endeavours  to  assert  his  right  by 

15  The  .statement  of  facts  is  omitted. 


Ch.  2)  AiB  33 

common  law  or  under  the  Prescription  Act.  That  act  fixes  periods  for 
the  acquisition  of  easements,  but,  except  in  regard  to  the  particular 
easement  of  light,  or  in  regard  to  certain  matters  which  are  immaterial 
to  the  present  inquiry,  it  does  not  alter  the  character  of  easements,  or 
of  the  user  or  enjoyment  by  which  they  are  acquired.  This  being  so, 
the  laws  governing  the  acquisition  of  easements  by  user  stands  thus : 
Consent  or  acquiescence  of  the  owner  of  the  servient  tenement  hes  at 
the  root  of  prescription,  and  of  the  fiction  of  a  lost  grant,  and  hence  the 
acts  or  user,  which  go  to  the  proof  of  either  the  one  or  the  other,  must 
be,  in  the  language  of  the  civil  law,  "Nee  vi  nee  clam  nee  precario;" 
for  a  man  cannot,  as  a  general  rule,  be  said  to  consent  to  or  acquiesce 
in  the  acquisition  by  his  neighbour  of  an  easement  through  an  enjoy- 
ment of  which  he  has  no  knowledge,  actual  or  constructive,  or  which 
he  contests  and  endeavours  to  interrupt,  or  which  he  temporarily  licens- 
es. It  is  a  mere  extension  of  the  same  notion,  or  rather  it  is  a  prin- 
ciple into  which  by  strict  analysis  it  may  be  resolved,  to  hold,  that  an 
enjoyment  which  a jnan  cannot  prevent  raises  no  presumption  of  con- 
sent or  acquiescence. 

Upon  this  principle  it  was  decided  in  Webb  v.  Bird,  13  C.  B.  (N.  S.) 
841,  that  currents  of  air  blowing  from  a  particular  quarter  of  the  com- 
pass, and  in  Chasemore  v.  Richards,  7  H.  L.  C.  349,  that  subterranean 
water  percolating  through  the  strata  in  no  known  channels,  could  not 
be  acquired  as  an  easement  by  user ;  and  in  Angus  v.  Dalton,  4  O.  B. 
D.  162,  a  case  of  lateral  support  of  buildings  by  adjacent  soil,  which 
came  on  appeal  to  this  court,  the  principle  was  in  no  way  impugned, 
although  it  was  held  by  the  majority  of  the  court  not  to  be  applicable 
so  as  to  prevent  the  acquisition  of  that  particular  easement.  It  is  a 
principle  which  must  be  equally  appropriate  to  the  case  of  affirmative 
as  of  negative  easements ;  in  other  words,  it  is  equally  unreasonable  to 
imply  your  consent  to  your  neighbour  enjoying  something  which  pass- 
es from  your  tenement  to  his,  as  to  his  subjecting  your  tenement  to 
something  which  comes  from  his,  when  in  both  cases  you  have  no  pow- 
er of  prevention.  But  the  affirmative  easement  differs  from  the  nega- 
tive easement  in  this,  that  the  latter  can  under  no  circumstances  be  in- 
terrupted except  by  acts  done  upon  the  servient  tenement,  but  the  for- 
mer, constituting,  as  it  does,  a  direct  interference  with  the  enjoyment 
by  the  servient  owner  of  his  tenement,  may  be  the  subject  of  legal 
proceedings  as  well  as  of  physical  interruption.  To  put  concrete  cases 
— the  passag-e  of  light  and  air  to  your  neighbour's  windows  may  be 
physically  interrupted  by  you,  but  gives  you  no  legal  grounds  of  com- 
plaint against  him.  The  passage  of  water  from  his  land  on  to  yours 
may  be  physically  interrupted,  or  may  be  treated  as  a  trespass  and 
made  the  ground  of  action  for  damages,  or  for  an  injunction,  or  both. 
Noise  is  similar  to  currents  of  air  and  the  flow  of  subterranean  and 
uncertain  streams  in  its  practical  incapability  of  physical  interruption, 
but  it  differs  from  them  in  its  capability  of  grounding  an  action.  Webb 
Big. Rights — 3 


^«^ 


tz^ 


34  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part  1 

V.  Bird  and  Chasemore  v.  Richards  are  not,  therefore,  direct  authori- 
ties governing  the  present  case.  They  are,  however,  illustrations  of 
the  principle  which  ought  to  govern  it ;  for  until  the  noise,  to  take  this 
case,  became  an  actionable  nuisance,  which  it  did  not  at  any  time  be- 
fore the  consulting  room  was  built,  the  basis  of  the  presumption  of 
the  consent,  viz.,  the  power  of  prevention  physically  or  by  action,  was 
never  present. 

It  is  said  that  if  this  principle  is  applied  in  cases  like  the  present, 
and  were  carried  out  to  its  logical  consequences,  it  would  result  in  the 
most  serious  practical  inconveniences,  for  a  man  might  go — say  into 
the  midst  of  the  tanneries  of  Bemiondsey,  or  into  any  other  locality 
devoted  to  a  particular  trade  or  manufacture  of  a  noisy  or  unsavoury 
character,  and,  by  building  a  private  residence  upon  a  vacant  piece  of 
land,  put  a  stop  to  such  trade  or  manufacture  altogether.^®  The  case 
also  is  put  of  a  blacksmith's  forge  built  away  from  all  habitations,  but 
to  which,  in  course  of  time,  habitations  approach.  We  do  not  think 
that  either  of  these  hypothetical  cases  presents  any  real  difficulty.  As 
regards  the  first,  it  may  be  answered  that  whether  anything  is  a  nui- 
sance or  not  is  a  question  to  be  determined,  not  merely  by  an  abstract 
consideration  of  the  thing  itself,  but  in  reference  to  its  circumstances ; 
what  would  be  a  nuisance  in  Belgrave  Square  would  not  necessarily  be 
so  in  Bermondsey ;  and  where  a  locality  is  devoted  to  a  particular  trade 
or  manufacture  carried  on  by  the  traders  or  manufacturers  in  a  par- 
ticular and  established  manner  not  constituting  a  public  nuisance,  judg- 
es and  juries  would  be  justified  in  finding,  and  may  be  trusted  to  find, 
that  the  trade  or  manufacture  so  carried  on  in  that  locality  is  not  a 
private  or  actionable  wrong.  As  regards  the  blacksmith's  forge,  that 
is  really  an  idem  per  idem  case  with  the  present.  It  would  be  on  the 
one  hand  in  a  very  high  degree  unreasonable  and  undesirable  that  there 
should  be  a  right  of  action  for  acts  which  are  not  in  the  present  condi- 
tion of  the  adjoining  land,  and  possibly  never  will-  be  any  annoyance 
or  inconvenience  to  either  its  owner  or  occupier ;  and  it  would  be  on 
the  other  hand  in  an  equal  degree  unjust,  and,  from  a  public  point 
of  view,  inexpedient  that  the  use  and  value  of  the  adjoining  land 
should,  for  all  time  and  under  all  circumstances,  be  restricted  and  di- 
minished by  reason  of  the  continuance  of  acts  incapable  of  physical 

18  "In  this  case  the  declaration  alleges  that  the  defendant  injuriously  car- 
ried on,  in  messuages  contiguous  to  the  messuage  of  the  plaintiff,  the  trade 
and  business  of  a  candlemaker,  by  which  noxious  vapors  and  smells  pro- 
ceeded from  the  messuage  of  the  defendant  and  diffused  themselves  over  the 
messuage  of  the  plaintiff ;  and  all  that  the  defendant  says  in  answer  is,  that 
he  carried  on  the  business  for  three  years  before  the  plaintiff  became  pos- 
sessed of  the  messuage  he  inhabits.  That  is  no  answer  to  the  complaint  in 
the  declaration;  for  the  plaintiff  came  tQ  the  house  he  occaipies  with  all  the 
rights  which  the  common  law  affords,  and  one  of  them  Is  a  right  to  whole- 
some air.  Unless  the  defendant  shows  a  prescriptive  right  to  carry  on  his 
business  in  the  particular  place  the  plaintiff  is  entitled  to  judgment."  Tin- 
dal,  C.  J.,  in  Bliss  v.  Hall,  4  Bing.  N.  C.  1S3,  1^6  (1S38).  Ace:  Hayden  v. 
Tucker,  37  Mo.  214  (18GG),  ante,  p.  23. 


Ch.2)  ^iR  35 

interruption,  and  which  the  law  gives  no  power  to  prevent.  The  smith 
in  the  case  supposed  might  protect  himself  by  taking  a  sufficient  curti- 
lage to  ensure  what  he  does  from  being  at  any  time  an  annoyance  to 
his  neighbour,  but  the  neighbour  himself  would  be  powerless  in  tlie 
matter. 

Individual  cases  of  hardship  may  occur  in  the  strict  carrying  out 
of  the  principle  upon  which  we  found  our  judgment,  but  the  negation 
of  the  principle  would  lead  even  more  to  individual  hardship,  and 
would  at  the"  same  time  produce  a  prejudicial  effect  upon  the  develop- 
ment of  land  for  residential  purposes.  The  Master  of  the  Rolls  in  the 
court  below  took  substantially  the  same  view  of  the  matter  as  ourselves 
and  granted  the  relief  which  the  plaintiff  prayed  for,  and  we  are  of 
opinion  that  his  order 'is  right  and  should  be  affirmed,  and  that  this 
appeal  should  be  dismissed^ with  costs.^'' 

IT  A.  owned  a  slaughterhouse  that  for  over  20  years  had  been  emitting 
stenches.  B.  and  C.  owned  adjacent  land ;  B.'s  being  unoccupied,  and  U.'s 
occupied.  They  sought  an  injunction  against  A.  A.  claimed  a  prescriptive 
right.  Held,  the  act  was  of  a  character  to  amount  to  a  nuisance.  The  court 
then  said: 

"Another  objection  to  the  defendant's  title  by  prescription  is,  that  until 
lately  the  plaintiffs  suffered  no  damage  from  the  alleged  nuisance,  and  there- 
fore^quld^ot  interpose  to  prevent  its  continuance.  But  It  is  very  clear  that, 
where  a  party's  riglTt  of  property  is  invaded,  he  may  maintain  an  action  for 
the  invasion  of  his  right,  without  proof  of  actual  damage."  Dana  v.  Valen- 
tine. 5  Mete.  (Mass.)  8  (1S42). 

Compare  Churchill  v.  Burlington  Water  Co.,  94  Iowa,  89,  62  N.  W.  641^ 
(1895) ;  Matthews  v.  Stillwater  Gas  &  Electric  Co.,  63  Minn.  49.3,  65  N.  W.  947 
(1896) ;  Mills  v.  Hall,  9  Wend.   (N.  Y.)  315,  24  Am.  Dec.  160  (1832). 


36  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part  1 

CHAPTER  III 

LAND 


2  ROLLE'S  ABRIDGMENT,  564:  If  A.  be  seised  in  fee  of  copy- 
hold land  next  adjoining  the  land  of  B.,  and  A.  erect  a  new  house  upon 
his  copyhold  land  and  part  of  the  house  is  built  upon  the  confines  of 
his  land  next  adjoining  B.'s  land,  if  B.  afterwards  excavates  his  land 
near  to  the  foundation  of  A.'s  house  but  no  part  of  the  land  of  A.,  by 
which  the  foundation  of  the  house  and  the  house  itself  fall  into  the 
pit,  still  no  action  Hes  by  A.  against  B. ;  for  it  was  the  fault  of  A.  him- 
self that  he  built  his  house  so  close  to  the  land  of  B.,  for  he  cannot  by 
his  own  act  prevent  B.  from  making  the  best  use  of  his  own  land  that 
he  can.  P.  15  Car.  B.  R.  [1639]  between  Wilde  and  Minsterley,  by  the 
court  after  a  judgment  for  the  plaintiff. 

But,  semble,  a  man  who  has  land  next  adjoining  my  land  cannot  ex- 
cavate his  land  so  close  to  mine  that  thereby  my  land  falls  in  his  pit. 
And  so  if  the  action  had  been  brought  for  this,  it  would  lie. 


BONOMI  v.  BACKHOUSE. 

(Exchequer  Chamber,  1859.     El.,  Bl.  &  El.  646.) 

WiLLES,  J,  This  is  a  proceeding  in  error  upon  a  judgment  of  the 
Court  of  Queen's  Bench,  and  was  brought  to  question  the  decision  in 
that  case  and  a  judgment  of  the  Court  of  Exchequer  in  Nicklin  v.  Wil- 
liams. In  the  Court  of  Queen's  Bench  Mr.  Justice  Wightman  differed 
from  the  majority  of  the  Court ;  some  of  whom  expressed  their  opinion 
with  very  great  doubt. 

The  question  argued  before  us  may  be  stated  in  a  very  few^  words. 
The  plaintiff  was  owner  of  the  reversion  of  an  ancient  house..  The 
defendant,  more  than  six  years  before  the  commencement  of  the  action, 
worked  some  coal-mines  280  yards  distant  from  it.  No  actual  damage 
occurred  until  within  the  six  years. 

Question :  Is  the  Statute  of  Limitations  an  answer  to  the  action  ? 
Or,  in  other  words,  did  the  cause  of  action  accrue  within  the  six  years  ? 
The  majority  of  the  Court  of  Queen's  Bench  thought  it  did  not. 

The  right  to  support  of  land  and  the  right  to  support  of  buildings 
stand  upon  different  footings  as  to  the  mode  of  acquiring  them,  the 
former  being  prima  facie  a  right  of  property  analogous  to  the  flow  of  a 
natural  river,  or  of  air;  Rowbotham  v.  Wilson,  8  E.  &  B.  123  (E.  C. 
L.  R.  vol.  92) ;  though  there  may  be  cases  in  which  it  would  be  sus- 
tained as  matter  of  grant  (see  The  Caledonian  Railway  Company  v. 
Sprot,  2  Macq.  Sc.  App.  449) ;  whilst  the  latter  must  be  founded  upon 


Ch.  3)  LAND  37 

prescription  or  grant,  expi-ess  or  implied :  but  the  character  of  the 
rights,  when  acquired,  is  in  each  case  the  same.  The  question  in  this 
case  depends  upon  what  is  the  character  of  the  right ;  viz.,  whether  the 
support  must  be  afforded  by  the  neighbouring  soil  itself,  or  such  a  por- 
tion of  it  as  would  be  beyond  all  question  sufficient  for  present  and 
future  support,  or  whether  it  is  competent  for  the  owner  to  abstract 
the  minerals  without  liability  to  an  action  unless  and  until  actual  dam- 
age is  thereby  caused  to  his-neighbour.  The  most  ordinary  case  of  with- 
drawal of  support  is  in  town  property,  where  persons  buy  small  pieces 
of  land,  frequently  by  the  yard  or  foot,  and  occupy  the  whole  of  it  with 
buildings.  They  generally  excavate  for  cellars,  and  in  all  cases  make 
foundations ;  and,  in  lieu  of  support  given  to  their  neighbor's  land  by 
the  natural  soil,  substitute  a  wall.  We  are  not  aware  that  it  has  ever 
been  considered  that  the  mere  excavation  of  the  land  for  this  purpose 
gives  a  right  of  action  to  the  adjoining  owner  and  is  itself  an  unlawful 
act,  although  it  is  certain  that  if  damage  ensued  a  right  of  action  would 
accrue.  So  also  we  are  not  aware  that,  until  the  case  of  Nicklin  v.  Wil- 
liams, 10  Exch.  259,  it  had  ever  been  supposed  that  the  getting  coal 
or  minerals,  to  whatever  extent,  in  a  man's  own  land  was  an  unlawful 
act,  although,  if  he  thereby  caused  damage  to  his  neighbour,  he  was  un- 
doubtedly responsible  for  it.  The  right  of  action  was  supposed  to  arise 
from  the  damage,  not  from  the  act  of  the  adjoining  owner  in  his  own 
land.  The  law  favours  the  exercise  of  dominion  by  every  one  upon 
his  own  land,  and  his  using  it  for  the  most  beneficial  purpose  to  himself. 
As  we  have  already  said,  the  defendant's  proposition  is  that  the  ad- 
joining owner  is  entitled  to  have  the  adjacent  land  remain  in  its  nat- 
ural condition ;  he  does  not  and  cannot  contend  that  an  artificial  sub- 
stitute would  prevent  a  cause  of  action.  For,  if  he  did,  if  he  admitted 
that  a  man  might  excavate  the  natural  soil  to  an  extent  dangerous  to 
the  adjoining  owner,  provided  he  applied  a  remedy  in  time  to  prevent 
damage,  as  by  putting  props  or  a  wall,  this  consequence  would  follow : 
that  he  must  have  time  within  which  to  do  it ;  and  that  time  would  be 
any  time  until  damage  resulted ;  which,  in  effect,  would  be  to  say  that 
there  was  no  cause  of  action  till  actual  damage.  If  the  defendant  is 
right,  these  consequences  follow :  whenever  a  mine  or  quarry  is  work- 
ed, the  worker  may  be  subjected  to  actions  by  all  surrounding  owners ; 
nay,  they  would  in  self-defence  be  compelled  to  bring  them,  if  there 
was  any  reasonable  ground  to  suppose  that  the  working  would  in  time 
produce  damage  to  their  property.  It  would  be  in  vain  that  the  worker 
should  say:  "You  will  not  be  injured;  the  workings  are  not  injuri- 
ous; if  they  turn  out  Hkely  to  be  so,  I  will  take  means  to  prevent  it; 
at  all  events  wait  till  you  are  injured."  Vexatious  and  oppressive  ac- 
tions might  be  brought,  on  the  one  hand;  and,  on  the  other,  an  unjust 
immunity  obtained  for  secret  workings  of  the  most  mischievous  char- 
acter, but  the  result  of  which  did  not  appear  within  six  years.  The  in- 
quiry in  such  cases  would  be  little  better  than  speculative.  The  charac- 
ter of  the  soil,  the  inclination  of  the  strata,  the  depth  and  extent  of  the 


38  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part   1 

works,  the  distance  and  nature  of  the  land -supposed  to  be  in  danger, 
and  other  considerations,  would  make  the  inquiry  of  such  a  character 
that  the  only  prudent  verdict  would  be  "Not  proven."  In  many  cases, 
damages  would  be  given  where  none  could  be  sustained ;  while  they 
would,  in  other  cases,  be  given  where  they  ought  to  be  withheld. 

JThere  is  no  doubt  that  for  an  injury  to  a  right  an  action  lies:  but 
the  question  is.  What  is  the  plaintiff's  right?  Is  it  that  his  land  should 
remain  in  its  natural  state,  unaffected  by  any  act  done  in  the  neighbour- 
ing land,  or  is  it  that  nothing  should  be  done  in  the  neighbouring  land 
from  which  a  jury  would  find  that  damage  might  possibly  accrue? 
There  is  no  doubt  that  in  certain  cases  an  action  may  be  maintained, 
although  there  is  no  actual  damage.  The  rule  laid  down  by  Serjeant 
Williams,  in  note  (2)  to  Mellor  v.  Spateman,  1  Wms.  Saund.  346  b,  is 
that,  whenever  an  act  injures  another's  right,  and  would  be  evidence  in 
future  in  favour  of  the  wrongdoer,  an  action  may  be  maintained  for  an 
invasion  of  the  right,  without  proof  of  any  specific  damage.  This  is  a 
reasonable  and  sensible  rule ;  but  it  has  no  application  to  the  present 
case ;  for  the  act  of  the  defendant  in  getting  the  coal  would  be  no  evi- 
dence in  his  favour  as  to  any  future  act:  getting  the  coal  was  an  act 
done  by  him  in  his  own  soil  by  virtue  of  his  dominion  over  it.  If  the 
question  were  unaffected  by  decision,  we  cannot  but  think  that  the 
contention  on  the  part  of  the  plaintiffs  in  error  is  correct.  That  on 
behalf  of  the  defendant  is,  that  the  action  must  be  brought  within  six 
years  after  the  excavation  is  made,  and  that  it  is  immaterial  whether 
any  actual  damage  has  occurred  or  not.  The  jury,  according  to  this 
view,  would  have  therefore  to  decide  upon  the  speculative  quesBon, 
Whether  any  damage  was  likely  to  arise ;  and  ft  might  well  be  that 
in  many  cases  they  would,  upon  the  evidence  of  mineral  surveyors  and 
engineers,  find  that  no  damage  was  likely  to  occur,  when  the  most  seri- 
ous injury  afterwards  might  in  fact  occur,  and  in  others  find  and 
give  large  sums  of  money  for  apprehended  damage,  which  in  point  of 
fact  never  might  arise.  This  is  certainly  not  a  state  of  the  law  to  be 
desired.  On  the  other  hand,  the  plaintiffs  in  error  rely  upon  the  ordi- 
nary rule  that  dam-num  and  injuria  must  concur  to  confer  a  right  of 
action,  and  that,  although  only  one  action  could  be  maintained  for 
damage  in  respect  of  such  a  claim,  nevertheless  it  would  be  essential 
that  some  damage  should  have  happened  before  a  defendant  was  made 
liable  for  an  act  done  in  his  own  land.  Actions  upon  contract  and 
actions  of  trespass  for  direct  injuries  to  the  land  of  another  are  clearly 
distinguishable. 

No  authority  is  cited  in  Nicklin  v.  Williams,  10  Exch.  259,  for  the 
judgment  there  given:  and,  although  the  judgment  in  that  case  is 
distinct  upon  the  point,  it  nevertheless  was  extrajudicial ;  for  before 
the  former  action  was  commenced  it  is  obvious  that  actual  damage  had 
been  sustained;  in  which  case  another  principle  applies,  viz.,  that  no 
second  or  fresh  action  can  under  such  circumstances  be  brought  for 
subsequently  accruing  damage:     all  the  damage  consequent  upon  the 


Ch.  3)  LAND  39 

unlawful  act  is  in  contemplation  of  law  satisfied  by  the  one  judgment  or 
accord.     We  are  not  insensible  to  the  consideration  that  the  holding 
damage  to  be  essential  to  the  cause  of  action  may  extend  the  time  dur- 
ing which  persons  working  minerals  and  making  excavations  may  be 
made  responsible ;   but  we  think  that  the  right  which  a  man  has  is  to 
enjoy  his  own  land  in  the  state  and  condition  in  which  nature  has 
placed  it,  and  also  to  use  it  in  such  manner  as  he  thinks  fit,  subject 
always  to  this :    that,  if  his  mode  of  using  it  does  damage  to  his  neigh- 
bour, he  must  make  compensation.     Applying  these  t^v^  2jinciplgs_to,_ 
the  present  case,  we  think  that  no  cause  of  action  accrued  for  the 
jmere  excavation  by  the  defendant  in  his  own  land,  so  long  as  it  caused. 
JIG  damage  to  the  plaintiff;    and  that  the  cause  of  action  did  accrue^ 
when  the  actual  damage  first  occurred. 

We  should  be  unwilling  to  rest  our  judgment  upon  mere  grounds  of 
policy;  but  we  cannot  but  observe  that  a  rule  of  law,  or  rather  the 
construction  of  a  Statute  of  Limitation,  which  would  deprive  a  man  of 
redress  after  the  expiration  of  six  years,  when  the  act  causing  the 
damage jvas  unknown  to  him,  and  when  in  very  many  instances  he 
would  be  in  inevitable  ignorance  of  it,  would  be  harsh,  and  contrary  to 
ordinary  principles  of  law. 

The  judgment  must  therefore  be  reversed,  and  judgment  given  for 
th6  plaintiffs. 

Judgment  reversed.^ 

3  The  judgment  of  the  Court  of  the  Exchequer  Cliamber  was  affirmed  in 
the  House  of  Lords.    9  H.  of  L.  503  (1S61). 

Ace:  Smith  v.  Seattle,  IS  Wash.  484,  51  Pac.  1057,  63  Am.  St.  Kep.  910 
(1898).  See  Darley  Main  Colliery  Co.  v.  Mitcliell,  L.  R.  11  A.  C.  127-(188(j) ; 
West  Leigh  Colliery  Co.  v.  Tunnicliffe  &  Hampson,  [1908]  A.  C.  27  (1907). 

A.  was  the  owner  of  the  surface  of  a  certain  piece  of  land,  and  B.  of  the 
underlying  adjacent  coal  strata.  B.  so  mined  that  later  the  surface  of  A.'s 
land  subsided.  The  subsidence  took  place  more  than  six  years  after  the 
mining.  The  court  held  that  A.  could  not  recover  from  B.,  saying,  inter 
alia: 

"The  adjacent  owner  in  this  case  at  some  time  failed  in  duty  to  the  owner 
of  the  surface  of  this  lot.  The  mere  fact  that  it  caved  in  because  the  coal 
had  been  mined  underneath  demonstrates  this  failure.  When  the  coal  was 
removed  without  leaving  sufficient  pillars,  or  without  supplying  sufficient 
artificial  props,  was  the  time  when  the  subjacent  owner  failed  in  an  abso- 
lute duty  he  owed  to  his  neighbor  above.  And  from  that  dates  the  cause  of 
action.  Unless,  when  the  coal  was  mined,  the  miner  left  no  pillars,  or  too 
few,  or  oTtOo  small  dimensions  for  such  a  mine,  or  did  not  replace  the  coal 
with  ample  artificial  durable  props,  there  was  no  cause  of  action." 

"The  date  of  the  cave-in  and  partial  destruction  of  the  house  is  not  the 
date  of  the  cause  of  action ;  that  was  only  the  consequence  of  a  previous 
cause,  whether  one  month  or  twenty  years  before.  It  is  argued  that  in  some 
cases  the  surface  owner  could  not  know  by  the  most  careful  observation 
whether  the  mine  owner  had  neglected  his  duty  within  six  years.  We  an- 
swer, that  is  only  one  of  the  incidents  attending  the  purchase  of  land  over 
coal  mines.  It  is  not  improbable  that  this  risk  enters  largely  into  the  com- 
mercial value  of  all  like  surface  land  in  that  region.  But,  however  this  may 
be,  we  hold  that  the  miner  is  not  forever  answerable  for  even  his  own  de- 
fault. Further,  in  no  case. is  he  answerable  for  the  default  of  his  predeces- 
sor before  his  possession."  Noonan  v.  Pardee,  200  Pa.  474,  483,  484,  50  Atl. 
255,  55  L.  R.  A.  410,  86  Am.  St.  Rep.  722  (1901). 

A.  and   B.   were  adjacent  landowners.     B.   excavated   the   coal   under   his 


^^ 


c 


40  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part  1 

SMITH  V.  THACKERAH. 

(Court  of  Common  Pleas,  1866.    L.  R.  1  C.  P.  564.) 

Declaration  that  the  plaintiff  was  possessed  of  certain  land,  and  the 
land  received  lateral  support  from  certain  land  adjoining  thereto,  and 
the  defendants  dug  and  made  on  this  adjoining  land  an  excavation  or 
well  near  to  the  land  of  the  plaintiff,  and  the  defendants  thereby,  and 
for  want  of  ke.eping  and  continuing  the  sides  of  the  well  shored  up,  or 
otherwise  preventing  the  consequences  hereinafter  mentioned,  wrong- 
fully deprived  the  land  of  the  plaintiff  of  its  support,  whereby  the  land 
of  the  plaintiff  sank  and  gave  way,  and  divers  walls,  buildings,  and 
premises  of  the  plaintiff"  on  the  land  sank  and  were  damaged,  whereby 
the  plaintiff  was  put  to  great  expense,  &c. 

Pleas :    Not  guilty,  and  not  possessed. 

At  the  trial  before  Erie,  C.  J.,  at  the  last  Surrey  spring  assizes,  it 
was  proved  that  the  plaintiff  was  possessed  of  a  piece  of  land  on  which 
a  building  had  been  recently  erected,  and  that  the  defendants,  who 
were  neighbouring  landowners,  dug  a  well  on  their  own  land  near  to 
that  of  the  plaintiff,  and  afterwards  filled  up  the  well  with  such  loose 
earth  that  the  ground  round  it  sank,  and  the  plaintiff's  building  was 
injured,  causing  damage  to  the  amount  of  £15. 

The  jury  found,  in  answer  to  questions  by  the  Chief  Justice,  that 
the  land  of  the  plaintiff  would  have  sunk  if  there  had  been  no  building 
on  it,  and  that  some  particles  of  sand  from  it  would  have  fallen  on  to 
the  defendants'  property,  but  that  the  plaintiff  would  have  suffered  no 
appreciable  damage. 

A  verdict  was  entered  for  the  defendants,  with  leave  to  the  plaintiff 
to  move  to  enter  the  verdict  for  such  sum  under  £15.  as  the  Court 
should  direct,  on  the  ground  that  the  facts  proved  at  the  trial  entitled 
the  plaintiff  to  a  verdict  without  proof  of  any  pecuniary  damage. 

Robinson,  Serj.,  obtained  a  rule  nisi  pursuant  to  the  leave  reserved. 

ErlE,  C.  J.  I  am  of  opinion  that  this  rule  should  be  discharged. 
There  is  no  doubt  that  a  right  of  action  accrues  whenever  a  person 
interferes  with  his  neighbour's  rights,  as,  for  example,  by  stepping  on 
his  land,  or,  as  in  the  case  of  Ashby  v.  White,  1  Sm.  L.  C.  (5tli  Ed.) 
216,  interfering  with  his  right  to  vote,  and  this  though  no  actual  dam- 
age may  result.  But  for  a  man  to  dig  a  hole  in  his  own  land  is  in  itself 
_a  perfectly  lawful  act  of  ownership,  andjt  only  becomes  a  wrong  if  it 
injures  his  neighbour;  and  since  it  is  the  injury  itself  which  gives  rise 
to  the  right  of  action,  there  can  be  no  right  of  action  unless  the  dam- 
age is  of  an  appreciable  amount.  A  person  may  build  a  chimney  in 
front  of  your  drawing  room,  and  the  smoke  from  it  may  annoy  you,  or 

land.  Later  B.  died,  devising  the  land  to  C.  C.  did  not  work  the  mines. 
Thereafter  A.'s  land  subsided ;  this  subsidence  being  caused  by  the  workings 
done  by  B.  Held,  A.  has  no  cause  of  action  against  C.  Hall  v.  Norfolk, 
[1900J  2  Ch.  493.      See,  also,  Greeuwell  v.  Coal  Co.,  L1897]  2  Q.  B.  165. 


Ch.  3)  LAND  41 

he  may  carry  on  a  trade  next  door  to  your  house  the  noise  of  which 
may  be  inconvenient ;  but  unless  the  smoke  or  noise  be  such  as  to  do 
you  appreciable  damage,  you  have  no  right  of  action  against  him  for 
what  is  in  itself  a  lawful  act.  In  the  case  of  St.  Helen's  Smelting  Com- 
pah^vTTipping,  11  H.  L.  C.  642,  35  L.  J.  (Q.  B.)  66,  in  which  the  de- 
fendant had  set  up  some  chemical  works,  the  House  of  Lords  held  that, 
if  the  noxious  vapours  did  not  cause  material  damage  to  the  plaintiff, 
he  had  no  cause  of  action.  In  the  present  case  the  digging  the  well  and 
filling  it  up  again  were  in  themselves  perfectly  lawful  acts,  and  the 
jury  have  found  that  they  did  no  sensible  damage  to  the  plaintiff,  and 
he  has  therefore  no  right  of  action. 

BylSS,  J.  I  am  of  the  same  opinion.  In  actions  for  a  trespass  the 
trespass  itself  is  a  sufficient  cause  of  action.  But  in  actions  for  indirect 
injuries  like  the  present,  the  judgment  of  the  House  of  Lords  in  Bon- 
omi  V.  Backhouse,  9  H.  L.  C.  503,  34  L.  J.  (Q.  B.)  181,  shews  that  there 
is  no  cause  of  action  if  there  be  no  damage,  and  I  cannot  distinguish 
between  no  appreciable  damage  to  the  land  in  its  natural  state  and  no 
damage  at  all. 

Montague  Smith,  J.  I  am  of  the  same  opinion.  The  mere  sub- 
sidence of  the  surface  of  the  soil  is  not  necessarily  an  injury,  and  we 
are  bound  by  the  verdict  of  the  jury,  who  found  that  in  fact  no  appre- 
ciable damage  would  have  occurred  if  these  new  buildings  had  not  been 
on  the  land. 

Rule  discharged.* 

2  A  coal  company  so  mined  as  to  cause  a  public  highway  and  adjacent 
land  gradually  to  sink  to  a  depth  of  10  feet.  No  actual  damage  was  done 
to  the  highway  nor  was  it  rendered  thereby  less  convenient.  In  an  action 
against  the  coal  company,  Collins,  J.,  said:  "I  have  no  doubt  whatever  that 
such  an  action,  would  lie  without  proof  of  pecuniary  loss.  I  think  the  prin- 
ciple at  the  root  of  the  matter  is,  that  the  owner  is  entitled  to  have  his  land 

^■^  "remain  in  its  natural  state,  unaffected  by  any  act  done  in  the  neighbouring 
land":  see  per  Willes,  J.,  delivering  the  judgment  of  the  Exchequer  Cham^ 
ber  in  Bonomi  v.  Backhouse,  E.,  B.  &  E.  622.  at  page  657,  and  that  as  soon 
as  the  condition  of  the  plaintiffs'  land  has  been  in  fact  changed  to  a  sub- 
stantial extent  by  the  withdrawal  of  lateral  support,  the  plaintiff  has  sus- 
tained an  injuria  for  which  he  may  maintain  an  action  without  proof  of 
pecuniary  loss.  In  the  same  case,  Willes,  J.,  compares  the  right  to  that  in 
the  flow  of  a  natural  river — a  right  which  is  unquestionably  invaded  where 
a  sensible  alteration  has  been  produced  in  the  character  of  the  water  where 
it  passes  the  plaintiff's  land,  although  there  is  no  money  damage.  Another 
source  of  some  confusion  is  that  damage  not  measurable  in  money  has  been 

v_  treated  as  equivalent  to  a  physical  alteration  so  small  as  to  amount  to  noth- 
ing in  contemplation  of  law — an  observation  which  may  perhaps  explain 
.Smith  V.  Thackerah,  Law  Rep.  1  C.  P.  564,  which  is  the  only  case,  so  far  as 
I  know,  which  might  seem  to  throw  doubt  on  the  principle  which  I  have 
stated."     Attorney  General  v.  Conduit  Co.,  [1895]  1  Q.  B.  301,  311,  313  (1894). 


^ '^     ^  ^^c^-t'^  C^-^iy€^u^,K^ZZ^a-yC(^        <c^iU^ 


42 


RIGHTS  INCIDENTAL  TO   POSSESSION 


(Part  1 


CORPORATION  OF  BIRMINGHAM  v.  ALLEN, 


(Chancery  Division,  1877.     L.  R.  6  Ch.  Div.  284.) 

This  was  an  action  by  the  Corporation  of  Birmingham,  who  were 
the  owners  of  gasworks  called  the  Swan  Village  Gasworks,  to  restrani 
the  Defendants,  T.  H.  Allen  and  T.  E.  Holden,  who  were  proprietors 
of  Swan  Farm  Colliery,  in  the  neighborhood  of  the  gasworks,  from 
working  their  coal  in  such  a  manner  as  to  cause  subsidence  of  thejsur- 
face  of  the  plaintiffs'  land. 

The  plaintiff's  purchased  the  gasworks  from  the  Birmingham  &  Staf- 
fordshire Gaslight  Company  in  the  year  1875. 

The  gas  company  purchased  the  land  on  which  the  works  were  erect- 
ed together  with  the  minerals  under  the  same,  in  the  year  1824.  They 
afterwards  purchased  the  minerals  under  various  pieces  of  land  ad- 
joining their  property,  for  the  purpose  of  preventing  the  surface  of 
their  own  land  from  being  shaken  or  disturbed.  Among  others  they 
purchased,  in  1872,  the  minerals  under  a  piece  of  land  belonging  to 
Messrs.  Pershore  &  Gregory  which  adjoined  the  western  boundary  of 
the  gasworks.  The  defendants'  colliery  lay  to  the  west  of  this  piece 
of  land,  to  which  it  adjoined,  so  that  the  piece  of  land  lay  between  the 
properties  of  the  plaintiffs  and  the  defendants. 

'    The  seams  of  coal  under  the  district  were  as  follows:    The  brooch 
f^^^'t^^cosX,  3  ft.  9  in.  thick,  about  ninety  yards  from  the  surface. 


^. 


^' 


The  thick  coal,  28  ft.  9  in.  thick,  about  156  yards  from  the  surface. 

The  heathen  coal,  3  ft.  6  in.  thick,  about  156  yards  from  the  surface. 

The  new  mine  coal,  5  ft.  6  in.  thick,  about  185  yards  from  the  sur- 
face. 

The  thick  coal  under  the  piece  of  land  purchased  by  the  gas  com- 
pany in  1872  had  been  worked  out  more  than  thirty  years  before  they 
purchased  it,  and  the  superincumbent  earth  was  propped  by  pillars  in 
the  usual  way. 

The  thick  coal  under  the  gasworks  had  not  been  vvorked  out  when 
the  company  purchased  the  site  in  1824;  but  in  the  year  1834  they 
granted  the  thick  coal  under  a  small  portion  of  the  surface  to  Messrs. 
Bagnall  &  Haynes,  who  worked  it  out.  Some  of  the  area  thus  granted 
was  exactly  under  the  retorts  of  the  gas  company. 

The  defendants  were  now  engaged  in  working  the  lowest  vein,  or 
new  mine  coal,  under  their  land.  They  worked  from  west  to  east,  and 
in  doing  so  approached  within  a  few  yards  of  the  western  boundary  of 
land  purchased  by  the  gas  company  in  1872. 

The  plaintiffs  claimed  that  the  working  of  the  new  mine  coal  by  the 
defendants  had  already  caused  a  subsidence  of  the  surface  of  their  land 
and  the  buildings  thereon  erected,  and  would,  if  persisted  in,  cause 
them  great  injury  and  they  brought  this  action  for  an  injunction  ac- 
cordingly. 


Ch.3)  ^  LAND  43 

The  defendants  pleaded  that,  if  any  subsidence  of  the  plaintiffs'  land 
had  taken  place,  it  had  been  caused  partly  by  the  excavations  of  thick 
coal  under  the  plaintiffs'  own  land  by  the  lessees  of  the  gas  company, 
and  partly  by  the  erection  of  buildings  within  the  last  twenty  years 
over  such  excavated  portions;  and  they  denied  that  they  were  under 
any  Hability  to  the  plaintiffs  in  respect  of  any  injury  they  had  sus- 
tained. 

Both  sides  went  into  evidence  at  great  length.  The  trial  came  on  be- 
fore the  Master  of  the  Rolls  on  the  15th  of  March,  1877,  and  witness- 
es were  examined  on  both  sides. 

The  result  of  the  evidence  is  stated  in  the  judgment  of  the  Master  of 
the  Rolls. 

JessEL,  M.  R.  I  am  of  opinion  that  the  plaintiffs'  case  entirely  fails. 
We  have  had  a  most  careful  and,  I  think,  a  most  exhaustive  investiga- 
tion into  the  facts,  and,  as  far  as  I  am  concerned,  I  have  no  doubt  upon 
any  of  the  facts  necessary  to  be  decided. 

I  think  it  is  plain  that  if  the  land  adjoining  the  plaintiffs'  land  had 
not  been  undermined,  the  defendants  might  work  the  new  mine  seam 
as  well  as  tlie  thick  coal  seam  up  to  their  boundary.  [His  Lordship 
then  referred  to  the  evidence  on  this  point.] 

Now,  looking  to  this  evidence,  and  considering  that  it  is  for  the  plain- 
tiffs to  prove  their  case,  I  am  of  opinion  that  it  is  proved  satisfactorily 
that,  supposing  the  land  between  the  plaintiffs'  and  the  defendants'  land 
had  remained  in  its  natural  state,  if  the  defendants'  workings  should 
be  prosecuted  up  to  the  boundary  of  their  property,  they  would  not,  as 
far  as  the  new  mine  is  concerned,  cause  any  injury  whatever  to  the 
plaintiffs'  works. 

Then  there  is  a  second  question,  which  is  a  question  of  fact  I  think 
I  ought  to  give  my  opinion  upon.  Has  the  working  of  the  defendants' 
new  mine  at  all  actually  injured  the  plaintiffs'  buildings?  I  am  clear 
it  has  not.  [His  Lordship  then  considered  the  evidence  on  this  part 
of  the  case,  and  considered  that  there  was  no  evidence  of  injury  al- 
ready received.] 

Then  comes  the  question,  Will  it  occasion  injury?  As  to  that,  the 
evidence  is  very  conflicting.  Mr.  Cooksey  puts  the  safe  distance  as 
100  yards,  and  although  there  is  a  little  variation,  the  plaintiff's'  experts 
substantially  agree  in  putting  the  safe  distance  at  100  yards,  or  fifty- 
five  yards  from  the  defendants'  boundary.  The  defendants'  four  ex- 
perts also  substantially  agree,  and  they  put  it  at  sixty  yards,  or  fifteen 
yards  from  the  defendants'  boundary.  Here,  again,  it  is  for  the  plain- 
tiffs to  make  out  their  case,  and  it  seems  to  me  to  be  mere  surmise  on 
both  sides'.  However,  I  must  say,  if  it  were  necessary  to  decide  the 
case  on  that  ground,  that  it  is  not  proved  to  my  satisfaction  that  more 
than  sixty  yards  is  required,  that  is,  more  than  fifteen  yards  from  the 
boundary. 

[His  Lordship,  after  considering  certain  subordinate  questions  of 
fact,  continued:] 


44  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part  1 

I  now  come  to  a  point  of  very  great  difficulty  indeed,  on  which  the 
evidence  is  in  a  very  singular  condition.  The  plaintiffs  themselves,  or 
their  predecessors  in  title,  had  allowed  a  portion  of  their  land  to  be  un- 
dermined, that  is,  had  allowed  coal  to  be  extracted  from  under  that 
land,  and  the  question  was,  whether  the  extraction  of  that  coal  in  any 
way  interfered  with  the  support  of  the  retort  houses.  Now  the  odd 
part  of  the  matter  is,  that  the  experts  for  the  plaintiffs  said  that  it 
would  interfere  with  the  support,  and  increase  subsidence;  and  the 
experts  of  the  defendants  said  it  would  not.  Under  these  circumstanc- 
es I  think  it  is  only  fair  to  say  that,  as  against  the  plaintiffs,  they  can- 
not reject  the  evidence  of  their  own  experts,  and  therefore  I  must  con- 
sider that  it  does  affect  it  to  some  extent,  but  considering  the  evidence 
of  the  defendants'  experts,  not  to  a  material  extent.  That  is  the  way 
that  matter  appears  to  me. 

Now,  having  so  far  dealt  with  the  facts,  let  me  consider  the  law. 
As  I  understand,  the  law  was  settled  by  the  House  of  Lords,  confirm- 
ing the  decision  of  the  Court  of  Exchequer  Chamber  in  the  case  of 
Backhouse  v.  Bonomi,  9  H.  L.  C.  503,  tl^at  every  landowner  in  the 
kingdom  has  a  right  to  the  support  of  his  land  in  its  natural  state.  It 
is  not  an  easement:  it  is  a  right  of  property.  That  being  so,  if  the 
plaintiffs'  land  had  been  in  its  natural  state,  no  doubt  the  defendants 
must  not  do  anything  to  let  land  slip,  or  go  down,  or  subside.  If  they 
were  doing  an  act  which  it  could  be  proved  to  me  by  satisfactory  ex- 
pert evidence  would  necessarily  have  that  effect,  I  have  no  doubt  this 
court  would  interfere  by  injunction  on  the  ground  upon  which  it  al- 
ways interferes,  namely,  to  prevent jrreparable  damage  when  the  dam- 
age is  only  threatened.  Of  course  they  must  have  a  much  clearer  and 
much  stronger  case  to  call  for  the  interference  of  this  court  by  injunc- 
tion where  the  damage  is  merely  threatened  and  no  damage  has  actual- 
ly occurred,  than  when  some  damage  has  actually  occurred,  because  in 
the  one  case  you  have  no  facts  to  go  by,  but  only  opinion,  and  in  the 
other  case  you  have  actual  facts  to  go  by.  If  some  damage  has  oc- 
curred it  makes  it  manifest  and  certain  that  further  damage  will  occur 
by  reason  of  the  prosecution  of  the  works. 

Now  in  this  case,  if  it  stands  at  all,  it  may  well  stand  merely  on 
opinion  evidence,  which  would  be  sufficient  ground  for  interference, 
if  all  the  experts  agreed  and  the  court  were  satisfied  that  damage  had 
occurred ;  and  I  think  when  I  compare  the  evidence  of  these  various 
experts,  I  must  take  it  for  this  purpose  as  proved  that  if  the  defend- 
ants work  within  fifteen  yards  of  their  boundary,  and  in  their  new 
mine  coal,  damage,  and  serious  damage,  will  accrue  to  the  plaintiffs' 
buildings.  But  the  question  I  have  to  decide  is  whether  in  law  that 
entitles  them  to  an  injunction.  I  think  it  does  not.  In  this  case  it 
is  true  the  plaintiffs  or  their  predecessors  acquired  the  mineral  area, 
and  acquired  some  of  the  land  after  the  thick  coal  had  been  worked  out 
and  not  before;  but  for  the  present  purpose  I  lay  out  of  considera- 
tion the  fact  of  their  ownership  of  anything,  and  I  will  treat  the  case 


Ch.  3)  LAND  45 

as  if  the  portions  under  which  they  possess  the  minerals,  and  the  land 
so  subsequently  acquired,  did  not  belong  to  them,  and  it  appears  as  the 
result  of  the  evidence  that  if  that  thick  coal  had  not  been  extracted 
from  under  these  portions  of  land,  the  intended  operations  of  the  de- 
fendants would  certainly  not  cause  any  substantial  injury. 

But  it  is  said  that,  inasmuch  as  these  operations  have  occurred  in 
what  I  will  call  the  intervening  land,  and  have  thereby  weakened  the 
support,  it  will  entitle  the  plaintiffs  to  prevent  the  owners  of  the  land 
on  the  other  side  of  this  intervening  land  from  working  their  mines  in 
the  way  they  could  otherwise  have  worked  them.  But  the  first  ques- 
tion one  asks  is,  Why  ?  Why  should  the  act  of  the  intervening  owner, 
that  is,  the  owner  of  the  intermediate  land,  deprive  men  of  their  rights 
to  their  mines  ?  It  strikes  one  at  once  as  a  most  extraordinary  proposi- 
tion. The  act  of  the  intervening  owner  for  this  purpose  is  rightful  as 
regards  the  mine  owners  whose  mines  are  asked  to  be  confiscated ;  for 
that  is  what  it  comes  to.  If  they  cannot  work  them  they  are  confiscated. 
The  plaintiffs  ask  for  the  confiscation  of  their  property,  not  because 
they  have  done  any  wrong,  for  they  have  done  no  wrong — not  because 
the  intervening  owner  "has  done  any  wrong,  for  he  only  worked  his 
mines,  and  when  he  worked  them  he  occasioned  no  injury  to  the  per- 
son who  owned  the  property  on  the  other  side ;  but  it  is  said  that  in- 
asmuch as  he  has  taken  out  his  coal  first,  the  defendants  are  deprived 
of  the  right  of  getting  their  mines.  I  say  it  is  a  startling  proposition, 
and  one  which  appears  to  me  so  unfounded  in  reason  that  I  should  be 
very  loth  indeed  to  believe  it  was  founded  in  law. 

Now,  what  is  the  right  of  the  adjoining  owner?  As  I  said  before, 
it  is  to  the  support  of  his  land  in  his  natural  state — support  by  whom? 
The  Judges  have  said,  "Support  by  his  neighbour."  What  does  that 
mean  ?  Who  is  his  neighbour  ?  It  was  contended  that  all  the  landown- 
ers in  England,  however  distant,  were  neighbours  for  this  purpose  if 
their  operations  in  any  remote  degree  injured  the  land.  But  surely  that 
cannot  be  the  meaning  of  it.  The  neighbouring  landowner  to  me  for 
this  purpose  must  be  the  owner  of  that  portion  of  land,  whether  a  wider 
or  narrower  strip  of  land,  the  existence  of  which  in  its  natural  state  is 
necessary  for  the  support  of  my  land.  As  long  as  that  land  remains  in 
its  natural  state,  and  it  supports  my  land,  I  have  no  rights  beyond  it, 
and  therefore  it  seems  to  me  that  he  is  my  neighbour  for  this  purpose. 
There  might  be  land  of  so  solid  a  character  consisting  of  solid  stone, 
that  a  foot  of  it  Avould  be  enough  to  support  the  land.  There  might  be 
other  land  so  friable  and  of  such  an  unsolid  character  that  you  would 
want  a  quarter  of  a  mile  of  it.  But  whatever  it  is,  as  long  as  you  have 
got  enough  land  on  your  boundary,  which  left  untouched  will  support 
your  land,  you  have  got  your  neighbour's  land  whose  support  you  are 
entitled  to.     Beyond  that  it  would  appear  to  me  you  have  no  rights. 

Well,  that  being  so,  it  is  clear  upon  the  evidence  that  the  interven- 
ing portions  of  land  between  the  boundary  of  the  plaintiffs'  and  the 
boundary  of  the  defendants'  land  was  sufficient  in  its  natural  state  for 


46  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part   1 

the  support  of  the  plaintiffs'  building.  Therefore  it  appears  to  me  jthat 
the  plaintiffs  have  no  rights  as  against  the  landowners  on  the  oth^_side_ 
of  that  intervening  space,  and  that  they  acquire  no  rights  whatever  the 
owner  of  the  intervening  land  may  have  done;  and,  if  the  act  of  the 
intervening  owner  has  been  such  as  to  take  away  the  support  to  which 
the  first  landowner  who  complains  is  entitled,  then,  for  whatever  dam- 
age occurs  from  the  act  which  he  has  done,  the  first  owner  may  have 
an  action,  but  an  action  against  the  intervening  owner,  not  an  action 
against  the  owner  on  the  other  side ;  and  it  appears  to  me  that  it  would 
be  really  a  most  extraordinary  result  that  the  man  upon  whom  no  re- 
sponsibility whatever  originally  rested,  who  was  under  no  liability  what- 
ever to  support  the  plaintiffs'  land,  should  have  that  liability  thrown 
upon  him  without  any  default  of  his  own,  without  any  misconduct  or 
any  misfeasance  on  his  part.  I  cannot  believe  that  any  such  law  ex- 
ists or  ever  will  exist.  It  appears  to  me,  therefore,  that  the  plaintiffs 
are  not  entitled  to  damages  for  the  acts  of  the  defendants,  and  that  the 
only  order  I  ought  to  make  is  to  dismiss  the  action  with  costs.^ 


FOLEY  V.  WYETH. 

(Supreme  Judicial  Court  of  Massachusetts,  1S61.     2  Allen,  131,  79  Am.  Dec. 

771.) 

Merrick,  J.*  The  declaration  alleges  that  the  plaintiff  was  seized 
and  possessed  of  the  parcel  of  land  described  therein,  together  with  a 
right  of  way  in  common  with  other  persons,  in  two  passage  ways  ad- 
joining and  appurtenant  thereto ;  and  that  jthe  d.ef  endant  dug  a  large 
and  deep  pit  in  her  own  land,  whereby  a  considerable  portion  of  his 
land  caved  in_and  was  removed,  and  the  said  passage  ways  were  made 
useless  and  impassaHe!  'And,  from  the  statement  of  facts  reported,  it 
appears  that  the  plaintiff  had  contracted  in  writing  to  purchase  the 
premises  for  a  valuable  consideration  to  be  subsequently  paid,  and  that 
in  the  mean  time  he  was  in  the  possession  and  occupation  of  the  prem- 
ises by  the  Hcense  of  Erastus  Hutchinson,  the  owner  with  whom  the 
contract  of  sale  was  made.  Proof  of  the  alleged  excavation  and  in- 
jury to  his  land  and  passage  ways  having  been  adduced  by  the  plain- 
tiff, the  presiding  judge  ruled  that  this  was  sufficient  to  entitle  him  to 
maintain  his  action,  and  t4iat  for  this  purpose  it  was  not  incumbent  on 
him  to  show  also  that  the  excavation  was  made  by  the  defendant  in  a 
careless,  negligent  and  unskilful  manner. 

This  ruling  was  correct.    If  the  owner  of  land  makes  an  excavation 

3  The  decision  was  affirmed  by  the  Court  of  Appeal.  L.  R.  6  Ch.  Div, 
292  (1877). 

Compare  Brown  v.  Robins,  4  Hurls.  &  N.  186  (1859),  Murray  v.  Pannaci,  64 
X.  J.  Eq.  147,  53  Atl.  595  (T902). 

The  opinions  of  James,  Ba^gallay,  and  Brett,  L.  J.,  are  omitted. 

*  Part  of  the  opinion  is  omitted. 


Ch.  3)  LAND  47 

in  it  so  near  to  the  adjoining  land  of  another  proprietor  that  the  soil 
j)i  the  latter  breaks  away  and  falls  into  the  pit,  he  is  responsible  for  all 
the  damage  thereby  occasioned.  Few  principles  of  the  law  can  be  trac- 
ed to  an  earlier  or  to  a  more  constant  recognition,  through  a  long  se- 
ries of  uniform  and  consistent  decisions,  than  this.  It  is  distinctly  stat- 
ed in  2  Rol.  Ab.  564.  In  Gale  &  Whatley  on  Easements,  215,  it  is  said 
that  "the  right  to  support  from  the  adjoining  soil  may  be  claimed  either 
in  respect  of  the  land  in  its  natural  state,  or  land  subjected  to  artificial 
pressure  by  means  of  buildings  or  otherwise."  In  the  former  case  the 
right  is  not  an  easement,  but  is  a  right  of  property  as  being  necessarily 
and  naturally  attached  to  the  soil.  Id.  216.  And  in  the  recent  case  of 
Humphries  v.  Brogden,  12  Ad.  &  El.  (N.  S.)  739,  where  the  law  upon 
the  subject  appears  to  have  been  fully  and  carefully  investigated  and 
considered,  it  is  affirmed  that  the  right  to  lateral  support  from  the  ad- 
joining soil  is  not  like  the  support  of  one  building  upon  another,  sup- 
posed to  be  gained  by  grant,  but  is  a  right  of  property  which  passes 
with  the  soil,  so  that  if  the  owner  of  two  adjoining  closes  conveys 
away  one  of  them,  the  alienee,  without  any  grant  for  that  purpose,  is 
entitled  to  the  support  of  the  other  close  the  very  instant  when  the  con- 
veyance is  executed.  "And  this  doctrine,"  said  Lord  Campbell,  C.  J., 
after  an  examination  of  the  authorities  in  which  it  is  recognized,  and 
by  which  it  is  sustained,  "stands  on  natural  justice,  and  is  essential  to 
the  protection  and  enjoyment  of  property  in  the  soil." 

The  same  principle  is'  asserted  by  this  court  in  the  opinion  given  by 
Parker,  C.  J.,  in  the  case  of  Thurston  v.  Hancock,  12  Mass.  220,  7  Am. 
Dec.  57.  The  decision  in  the  case  of  Lasala  v.  Holbrook,  4  Paige  (N. 
Y.)  169,  25  Am.  Dec.  524,  is  to  the  same  effect.  Radcliff  v.  Mayor, 
&c.,  of  Brooklyn,  4  N.  Y.  195,  53  Am.  Dec.  357;  Richardson  v.  Ver- 
mont Central  Railroad,  25  Vt.  465,  60  *Am.  Dec.  283 ;  Solomon  v.  The 
Vintners'  Company,  4  Hurlst.  &  Norm.  585.  It  is  a  necessary  conse- 
quence from  this  principle  that,  for  any  injury  fo  his  soil  resulting  from 
the  removal  of  the  natural  support  to  which  it  is  entitled,  by  means  of 
excavation  on  an  adjoining  tract,  the  owner  has  a  legal  remedy  in  an 
action  at  law  against  the  party  by  whom  the  work  has  been  done  and 
Ihe  mischief  Thereby  "occasioned.  This  does  not  depend  upon  negli- 
gence  or  unskil fulness,  but  upon  the  violation  of  a  right  of  property 
wljich^has  been  invaded  and  disturbed.,^  This  unqualified  rule  is  lim- 
ited to  injuries  caused  to  the  land  itself,  and  does  not  afford  relief  for 
damages^By~THe~same  means  to  artificial  structures.  For  an  injury  to 
buildings,  which  is  unavoidably  incident  to  the  depression  or~slide  of 
the  soil  on  which  they  stand,  caused  by  the  excavation  of  a  pit  on  ad- 
joining land,  an  action  can  only  be  niamtaincd  when  a  want  of  due 
care  or  skill,  or  positive  negligence,  has  contributed  to  produce  it. 

The  jury  were  therefore  correctly  advised  that,  if  the  defendant,  by 
excavations  in  her  own  land,  and  by  carrying  away  large  quantities  of 

6  Ace:     McOuire  v.  Grant,  25  N,  J.  Law,  356,  67  Am.  Doc.  49  (iS5G). 


'48  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part   1 

earth  and  clay  therefrom,  caused  the  adjoining  land  to  fall  and  sink 
into  the  pit  which  she  had  dug,  she  was  hable  for  the  injury  done  to 
the  soil  of  the  plaintiff;  and  that  this  action  might  be  maintained  to 
recover  damages  for  the  interruption  and  disturbance  of  his  right  of 
way  in  the  passage  ways,  as  well  as  for  depriving  him,  or  lessening  the 
value,  of  the  use  of  the  land  to  which  they  were  appurtenant.  But  it 
was  erroneous,  in  the  absence  of  any  proof  of  carelessness,  negligence 
or  unskilfulness  in  the  execution  of  the  work,  to  add  that  they  might 
take  into  consideration  as  an  element  of  damage  for  which  compensa- 
tion could  be  recovered,  the  fact  that  the  foundation  of  his  house  had 
been  made  to  crack  and  settle.     *     *     *  a 

The  defendant  excepts  to  the  refusal  of  the  court  to  instruct  the 
jury,  in  conformity  to  his  request,  that,  if  the  injury  complained  of  was 
in  any  degree  caused  by,  or  would  not  have  occurred  but  for,  the  ad- 
ditional weight  of  buildings  erected  on  their  land  by  persons  other  than 
the  plaintiff,  he  could  not  recover  in  this  action.  But  this  instruction 
was  properly  withheld.  Whether,  if  the  pressure  of  the  weight  of  ar- 
tificial structures  which  the  owner  has  placed  upon  his  own  land  for 
a  lawful  purpose  and  in  its  reasonable  use,  contributes  to  cause  a  slide 
or  crumbling  away  of  his  soil  into  a  pit  excavated  in  an  adjoining  close 
by  another  proprietor,  this  will  deprive  him  of  the  right  to  remunera- 
tion for  the  injury  sustained,  may  be  considered  to  be  at  least  open  to 
denial.  It  may  be  determined  when  the  precise  question  arises.  It  does 
not  arise  here. 

But  as  to  tlie  much  broader  proposition  asserted  by  the  defendant 
in  her  request,  we  think  there  is  no  room  for  doubt.  The  absolute  and 
unqualified  right  of  property  which  vests  in  the  owner  of  land  cannot 
be  diminished  or  lawfully  affected  by  the  acts  or  proceedings  of  stran- 
gers in  the  use  and  appropriation  of  that  which  belongs  to  them;  and 
therefore  he  who,  in  the  execution  of  an  enterprise  for  his  own  benefit, 
changes  the  natural  condition  of  the  parcel  of  territory  to  which  he 
has  title,  and  thereby  takes  away  the  lateral  support  to  which  the  owner 
of  the  adjoining  estate  is  entitled,  cannot  exonerate  himself  from  re- 
sponsibility by  showing  that  the  particular  injury  complained  of  would 
not  have  occurred  if  other  persons  had  never  made  alterations  in  or 
improvements  upon  their  respective  closes.  Brown  v.  Robbins,  4 
Hurlst.  &  Norm.  186.  His  right  of  dominion  over  his  own  land  is  not 
without  some  limitations.  To  make  a  justifiable  use  of  his  own,  he 
must  have  a  proper  respect  to  the  appropriation  which  has  already  been 
made  by  other  owners  of  the  surrounding  territory.  And  therefore, 
when  one  undertakes  to  make  an  excavation  on  his  land,  he  must  con^ 

6Acc.:  Moellering  v.  Evans,  121  Ind.  195,  22  N.  E.  989,  6  L.  R.  A.  449 
(1889);  Winn  v.  Abeles,  35  Kan.  85,  10  Fac.  443,  57  Am.  Rep.  138  (1886); 
Matulys  v.  Philadelphia  &  Reading  Coal  &  Iron  Co.,  201  Pa.  70,  50  Atl.  823 
(1902). 

Contra:  Brown  v.  Robbins.  4  H.  &  N.  186  (1859) ;  Stearns  v.  City  of  Rich- 
mond, 88  Va.  992,  14  S.  E.  847,  29  Am.  St.  Rep.  758  (1892). 


Ch.  3)  LAND  49 

sider  how  it  will  be  likely,  in  view  of  the  existing  and  actual  occuga- 
tion^oTothers,  to  affect  the  soil  of  his  neighbor. 

For  the  reasons  stated,  it  is  apparent  that  the  verdict  cannot  be  af- 
firmed for  the  sum  which  the  jury  have  found  as  the  damages  sus- 
tained; and  accordingly  it  must  be  set  aside  and  a  new  trial  granted.^ 


CHARLEvSS  V.  RANKIN. 
(Supreme  Court  of  Missouri,  1856.     22  Mo.  56G,  66  Am.  Dec.  642.) 

This  was  an  action  to  recover  damages  for  injuries  alleged  by  plain- 
tiff, Joseph  Charless,  in  his  petition  to  have  been  sustained  by  him  in 
consequence  of  the  "negligent,  unskillful  and  improper  manner"  in 
which  defendant,  David  Rankin,  made  certain  excavations  upon  a  lot 
adjoining  that  of  plaintiff,  which,  by  undermining  the  foundations  of 
plaintiff's  building,  caused  the  walls  thereof  to  fall. 

The  defence  set  up  was  substantially  a  denial  of  the  ne^igence  aj- 
leged  in  the  petition.     *     *     * 

On  motion  of  the  plaintiff,  the  court  gave  the  following  instructions 
to  the  jury,  to  the  giving  of  which  the  defendant  excepted:  "If  the 
jury  believe  from  the  evidence  that  the  digging  for  the  foundation 
of  defendant's  building  was  performed  in  a  reckless,  negligent,  or 
improper  manner,  and  that  by  reason  thereof  plaintiff's  house  was 
thrown  down,  then  plaintiff  is  entitled  to  recover  such  damage  as  he 
has  sustained  by  the  throwing  down  of  his  house.  (2)  If  the  jury 
believe  from  the  evidence,  that  the  fall  of  plaintiff's  building  might 
have  been  prevented  by  the  exercise  of  reasonable  care  and  skill  on 
the  part  of  those  who  were  digging  defendant's  cellar,  and  that,  owing 
to  their  failure  to  exercise  such  care  and  skill,  damage  resulted  to 

7  Where  A.  by  excavating  caused  B.'s  land  to  sink  tlie  court  said,  as  to 
B.'s  measure  of  damages: 

"It  is  agreed  that  the  'damages  occasioned  to  the  plaintiff,  by  loss  of  and 
injury  to  her  soil  alone,  caused  by  the  acts  of  the  defendant,  amount  to 
ninety-five  dollars.'  We  are  of  opinion  that  she  is  entitled  to  recover  that 
sum,  and  no  more.  She  is  clearly  not  entitled  to  recover  the  cost  of  putting 
her  land  into  and  maintaining  it  in  its  former  condition,  because  that  is  no 
test  of  the  amount  of  the  injury.  McGuire  v.  Grant,  1  Dutcher  [25  N.  J.  Law] 
356  [67  Am.  Dec.  49].  She  cannot  recover  the  difiference  in  market  value, 
because  it  does  not  appear  that  that  difference  is  wholly  due  to  the  Injury 
to  her  natural  right  in  the  land ;  it  may  depend  upon  the  present  shape  of 
the  lot.  upon  the  improvements  thereon,  or  upon  other  artificial  circumstances 
which  have  nothing  to  do  with  the  natural  condition  of  the  soil."  Gilmore 
v.  Driscoll,  122  Mass.  199,  209,  23  Am.  Rep.  312  (1877).  Ace:  Schultz  v. 
Bower,  64  Minn.  123,  66  N.  W.  139  (1896).  Compare  Wednesbury  v.  The 
Ivodge  Holes  Co.,  [1907]  1  K.  B.  78. 

The  principles  of  lateral  support  also  apply  to  subjacent  support,  where 
the  strata  are  separately  owned.  See  Humjjhries  v.  Brogden.  12  A.  <&  K. 
(N.  S.)  739  (1848) ;  Yandes  v.  Wright.  66  Ind.  319,  32  Am.  Rep.  109  (1879) ; 
Noonan  v.  Pardee,  ante,  p.  39. 


Big. Rights — 4 


>j./> 


< 


IL^  ^S. 


50  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part   1 

plaintiff's  building,  then  plaintiff  is  entitled  to  recover  in  this  action 
such  an  amount  of  damages  as  he  may  prove  he  has  sustained  by  the 
fall  of  his  building.  (3)  In  excavating  by  the  side  of  another's  build- 
ing, it  is  the  duty  of  the  person  having  the  excavating  done  to  use  such 
care  and  caution,  to  prevent  injury  to  such  building,  as  a  sensible  and 
prudent  man,  experienced  in  such  work,  would  exercise,  if  he  were 
the  owner  of  the  building;  and  the  omission  of  such  care  and  caution 
is  culpable  negligence,  and  renders  the  person  having  the  excavating 
done  .liable  for  all  the  damages  resulting  therefrom,  (6)  The  measure 
of  damages  in  this  case  is  the  amount  of  money  required  to  rebuild 
plaintiff's  house  as  it  was  before  the  fall,  and  the  value  of  the  house 
thrown  down  to  plaintiff  during  the  time  necessarily  taken  to  rebuild  it, 
with  the  interest  on  those  amounts  from  the  time  when  the  house  was 
completed,  after  its  fall,  to  the  present  time."     *     *     *  s 

Leonard,  Judge.  The  right  to  support  from  the  adjoining  soil  may 
be  claimed  either  for  the  land  in  its  natural  state,  or  for  it  subjected  to 
an  artificial  pressure  by  means  of  building  or  otherwise.  The  right 
in  the  former  case  would  seem  to  be  a  natural  servitude  or  ease- 
ment belonging  to  contiguous  lots,  and  accordingly  it  was  recognized 
and  protected  in  the  Roman  law  by  specified  regulations,  and  similar 
provisions  have  been  introduced  into  the  civil  code  of  France.  (Code 
Civil,  art.  614.)  We  are  not  aware  of  any  express  common  law  deci- 
sion upon  this  subject;  but  we  find  it  said  of  old,  in  Rolle's  Abr.  564, 
tit.  Trespass :  "It  seems  that  a  man  who  has  land  closely  adjoining  my 
land,  cannot  dig  his  land  so  near  mine  that  mine  would  fall  into  his 
pit,  and  an  action  brought  for  such  an  act  would  lie ;"  and  in  Wyatt  v. 
Harman,  (3  Bam.  &  Adol.  874),  Lord  Tenterden  remarked*  in  deliv- 
ering the  judgment  of  the  court  of  king's  bench :  "It  may  be  true  that, 
if  my  land  adjoins  that  of  another,  and  I  have  riot,  by  building,  in- 
creased the  weight  upon  my  soil,  and  my  neighbor  digs  in  his  land,  so 
as  to  occasion  mine  to  fall  in,  he  may  be  liable  to  an  action." 

When,  however,  the  lateral  pressure  has  been  increased  by  the 
erection  of  buildings,  it  seems  to  be  well  settled  at  common  law  by 
authorities,  that  no  man  has  a  right  to  an  increased  support  unless_he 
has  acquired  such  a  servitude  by  grant  or  prescription.  It  is  so  laid 
down  in  the  early  case  of  Wilder  v.  Minsterly  (2  Rolle's  Abr.  564). 
*  *  *  And  Lord  Tenterden,  in  delivering  the  judgment  of  the 
court  in  the  case  before  cited,  said :  "The  question  reduces  itself  to 
this:  if  a  person  builds  to  the  utmost  extremity  of  his  own  land,  and 
the  owner  of  the  adjoining  land  digs  the  ground  there,  so  as  to  remove 
some  part  of  the  soil  which  formed  the  support  of  the  building  so 
erected,  whether  an  action  lies  for  the  injury  thereby  occasioned. 
Whatever  the  law  might  be,  if  the  damage  complained  of  were  in 
respect  of  an  ancient  messuage,  possessed  by  the  plaintiff,  at  the 
extremity  of  his  own  land,  which  circumstance  of  contiguity  might  im- 

8  Parts  of  the  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Ch.  ?>)  .  Land  51 

ply  the  consent  of  the  adjoining  proprietor  at  a  former  time  to  the 
erection  of  the  building  in  that  situation,  it  is  enough  to  say  in  this 
case  that  the  building  is  not  alleged  to  be  ancient,  but  may,  as  far  as 
appears  from  the  declaration,  have  been  recently  erected,  and  if  so, 
then,  according  to  the  authorities,  the  plaintiff  is  not  entitled  to  re- 
cover." In  the  more  recent  case  of  Partridge  v.  Scott,  (3  Mees.  & 
Wels.  220,)  which  involved  the  same  question,  it  is  said:  "If  a  man 
builds  his  house  at  the  extremity  of  his  land,  he  does  not  thereby  ac- 
quire any  right  of  easement,  for  support  or  otherwise,  over  the  land 
of  his  neighbor.  He  has  no  right  to  load  his  own  soil  so  as  to  make 
it  require  the  support  of  that  of  his  neighbor,  unless  he  has  some  grant 
to  that  effect ;"  and  the  American  cases  are,  it  is  believed,  to  the  same 
effect.    (Thurston  v.  Hancock,  12  Mass.  221,  7  Am.  Dec.  57.) 

Although  not  altogether  in  good  taste,  I  repeat,  as  applicable  to  the 
present  case,  what  I  had  occasion  to  say  in  a  former  case.  It  is  a 
logical  consequence  from  legal  principles,  that  to  the  extent  to  which 
a  person  has  a  right  to  act,  others  are  bound  to  suffer;  and  that  any 
damage  that  may  accrue  to  them,  while  a  person  thus  exercises  his  own 
rights,  affords  no  valid  ground  of  complaint.  The  loss  occasioned  in 
such  cases  is  "damnum  absque  injuria."  Every  person,  however,  who 
is  performing  an  act  is  bound  to  take  some  care  in  what  he  is  doing. 
He  can  not  exercise  his  own  indisputable  rights  without  observing 
proper  precaution  not  to  cause  others  more  damage  than  can  be  deemed 
fairly  incident  to  such  exercise.  In  Wallars  v.  Pfeil,  (Mood.  &  Alalk. 
364,)  the  plaintiff  had  neglected  to  take  any  precaution  by  shoring  up 
their  own  houses  within,  or  in  any  other  way  against  the  effect  of 
pulling  down  the  defendant's  adjoining  house ;  and  it  appeared  that 
this  might  have  been  so  done  that  the  accident  would  not  have  hap- 
pened to  the  same  extent.  There  was  also  evidence  to  show  that  the 
accident  was  owing  to  the  bad  foundation  of  the  plaintiff's  house; 
but  there  was  conflicting  evidence  as  to  whether,  by  due  care  on  the 
part  of  the  defendant's  workmen,  the  mischief  might  have  been  entirely 
avoided.^  In  summing  up,  the  chief  justice  of  the  queen's  bench  stated 
it  to  be  now  settled  that  the  owner  of  premises  adjoining  those  pulled 
down,  must  shore  up  his  own  in  the  inside,  and  do  every  thing  proper 
to  be  done  upon  them  for  their  preservation ;  but,  although  that  had 
not  been  done,  still  the  omission  did  not  necesscirily  defeat  the  action, 
and  that  if  the_ pulling  down  \yere  irregularly  and  inigroperly  done, 
and  an  injury  were  produced  thereby,  the  person  so  acting  would  be 
liable,  notwithstanding  the  omission  of  the  plaintiff ;  and  the  jury 
were  accordingly  charged,  that,  if  the  defendant's  house  was  pulled 
down  in  a  wasteful,  negligent  and  improvident  manner,  so  as  to  occa- 
sion greater  risk  to  the  plaintiff  than  in  the  ordinary  course  of  doing 
the  work  he  would  have  incurred,  therithe  defendant  was^  liable  to 
make  compensation  for  the  consequences  of  his  want  of  caution;   but 

»  See  Bass  v.  West,  110  Ga.-69S,  36  S.  E.  244  (li)OU). 


52  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part  1 

that  if  they  thought  fair  and  proper  caution  had  been  exercised,  then 
the  defendant  would  be  entitled  to  a  verdict.  The  result  of  the  cases, 
we  think,  is,  (and  such  would  seem  to  be  the  reasonable  doctrine,)  that, 
if  a  man  in  the  exercise  of  his  own  rights  of  property  do  damage  to  his 
neighbor,  he  is  liable,  if  it  might  have  been- avoided  by  the  use  of  rea- 
sonable care ;  and  it  seems  to  be  usual  in  England  for  a  party  intending 
to  make  alterations  that  may  affect  his  neighbor's  premises,  to  give 
notice  of  his  intention ;  but  whether  any  such  duty  be  imposed  by 
law  (Town  v.  Chadwick,  8  Scott,  1)  need  not  be  inquired  into  here,  as 
the  present  plaintiff  knew  of  the  digging  and  took  measures  to  pro- 
tect himself  against  the  consequences  of  it.^*' 

These  principles  require  us,  we  think,  to  reverse  the  judgment,  and 
Send  the  case  back  for  a  second  trial.  We  do  not  think  there  is  any 
erf\.r  in  the  refusal  of  the  defendant's  first  and  fourth  instructions. 
A  pi;rty  may  subject  himself  to  responsibility  by  the  want  of  reasona- 
ble care,  although  his  digging  be  confined  to  his  own  ground  and  do 
not  exceed  a  reasonable  depth;  nor  is  he  protected  by  the  fact  that 
he  used  such  care  as  his  builder,  who  was  a  skillful  and  careful  person, 
deemed  necet>i,ary.  The  question  is,  as  to  the  fact  of  negligence,  wheth- 
er the  work  were  done  in  a  careless  and  improvident  manner,  so  as  to 
occasion  greater  risk  to  the  plaintiff  than  in  the  reasonable  course  of 
doing  the  work  he  would  have  incurred,  and  not  whether,  in  the  opin- 
ion of  the  superiniendent,  no  matter  how  skillful  he  may  have  been, 
every  thing  was  done  that  he  deemed  necessary.  His  opinion  may  be 
proper  evidence  to  be  considered  by  the  jury,  but  it  does  not  conclude 
the  matter,  constituting  of  itself  a  bar  to  the  plaintiff's  recovery.  But 
the  error  is  in  plaintiff's  third  instruction,  where  an  attempt  is  made 
to  define,  with  precision,  the  degree  of  care  that  must  be  used  in  a  case 
like  the  present,  in  order  to  exempt  a  party  from  liability;  and  the 
standard  there  adopted  is  substantially  that  care  that  a  prudent  man, 
experienced  in  such  work,  would  have  exercised,  if  he  had  been  him- 
self, the  owner  of  the  injured  building.  Now  it  is  quite  evident,  we 
chink,  that  this  is  going  beyond  the  care  that  the  law  exacts  upon  such 
occasions.  It  is  to  be  observed  that  the  defendant  was  upon  his  own 
ground,  and  in  digging  upon  it,  exercised  an  undoubted  right  of  prop- 
erty, which  the  plaintiff  had  no  right,  either  by  express  grant  or  pre- 
scription— by  statute  or  local  ordinance — in  any  way  to  interfere  with 
or  prevent;    and  although,  in  exercising  his  rights,  it  was  certainly 

10  "It  is  the  duty  of  one  who  makes  an  excavation  on  his  own  land,  deeper 
than  the  foundation  of  a  building  on  an  adjoining  lot,  and  so  near  to  such 
building  as  to  endanger  it,  to  notify  the  adjoining  owner  of  the  proposed  ex- 
cavation, and  afford  him  a  reasonable  opportunity  to  protect  his  property, 
and  a  failure  to  discharge  such  duty  is  negligence,  for  which  an  action  may 
be  maintained  for  the  injury  resulting  therefrom,  unless  the  adjoining  own- 
er had  actual  knowledge  c2  such  proposed  excavation."  Gerst  v.  St,  Louis, 
185  Mo.  191,  209,  84  S.  W.  34,  105  Am.  St.  Rep.  580  (1904). 

Ace:  Schultz  V.  Byers,  53  N.  J.  Law,  442,  22  Atl.  514,  13  L.  R.  A.  5G9, 
26  Am.  St.  Rep.  435  (1891) ;  Davis  v.  Summerfield,  131  N.  C.  352,  42  S.  E.  818, 
03  L.  K,  A.  492,  92  Am.  St.  Rep.  781   (1902).      ■ 


Ch.  3)  LAND  53 

liis  duty  to  his  neighbor  to  use  ordinary  care  in  order  to  avoid  doing 
him  harm,  he  was  not  bound  to  observe  the  same  care  that  he  would 
have  taken,  as  a  wise  and  sensible  man,  if  he  had  been  the  owner  of 
both  buildings — the  one  erected  and  the  one  about  to  be  erected.  He 
would,  of  course,  in  that  event,  have  shored  up  and  would  have  sub- 
mitted to  many  inconveniences,  and,  indeed,  would  have  incurred  con- 
siderable additional  expense  in  doing  the  new  work,  rather  than  ex- 
pose the  buildings  already  erected  to  any  risk.  Every  prudent  person, 
in  such  a  situation,  would  take  precautions — subject  himself  to  incon- 
veniences, and  forego  the  exercise  of  every  right  that  would  endanger 
his  present  building,  if  he  found  it  for  his  interest  to  do  so.  In  the 
present  case,  if  the  laying  of  the  new  foundation,  in  very  short  sec- 
tions, would  have  been  attended  with  increased  expense  and  with 
danger  to  the  sufficiency  of  the  new  wall,  and  the  defendant  had  been 
the  owner  of  the  plaintifif's  building,  he  might  have  found  it  for  his 
interest  to  have  submitted,  and  most  probably  would  have  submitted, 
to  this  inconvenience  and  risk,  and  even  increased  expense,  to  avoid 
all  hazard  to  his  own  property ;  yet  the  law  does  not  exact  of  him  the 
same  forbearance  and  care  and  expense  for  the  security  of  his  neigh- 
bor's property  that  he  would  have  found  it  for  his  interest  to  have 
taken  for  his  own.  We  do  not  know  that  the  instruction  was  intended, 
or  indeed  understood  by  the  jury  in  the  sense  we  impute  to  it.  It  may, 
however,  have  been  so  understood,  and  if  so,  could  not  but  have  misled 
them;  and  we  shall  therefore  reverse  the  judgment,  that  the  case  may 
be  retried  upon  a  fuller  understanding  of  the  facts  and  of  the  law 
applicable  to  them. 
The  judgment  is  reversed,  and  the  cause  remanded. ^^ 

1 1  "It  is  required  of  the  owner  of  tlie  soil,  having  the  right  to  excavate, 
notwithstanding  there  are  buildings  upon  adjacent  soil,  that  he  shall  exer- 
cise his  right  with  reasonable  skill  and  care  in  view  of  the  character  of 
the  buildings  and  the  nature  of  the  soil,  so  as  to  avoid  doing  unnecessary  in- 
jury to  the  buildings."  City  of  Quincy  v.  Jones,  76  111.  2dl,  241,  20  Am.  Kep. 
243'  (1875). 

"If  he  [the  excavating  owner]  fails  to  take  such  reasonable  precautious  to 
protect  his  neighbor's  soil  and  to  preserve  it  in  its  natural  state,  he  is  liable 
for  the  injury  to  both  the  land  and  the  superstructure,  if  the  pressure  of  the 
superstructure  did  not  cause  the  land  to  fall  and  it  fell  in  consequence  of 
the  failure  to  take  such  reasonable  precautions."  Gildersleeve  v.  Hammond, 
109  Mich.  431,  439,  67  N.  W.  519,  33  L.  R.  A.  46  (1896). 

See,  also,  Covington  v.  Geyler,  93  Ky.  275,  19  S.  W.  741  (1892);  Shafer  v. 
Wilson,  44  Md.  268  (1876) ;  White  v.  Nassau  Trust  Co.,  168  N,  Y.  149,  61  ^•. 
E.  169,  64  L.  R.  A.  275  (1901) ;  Spohn  v.  Dives,  174  Pa.  474,  34  Atl.  192  (1896). 
For  liability  under  statutes,  see  Aston  v.  Nolan,  63  Cal.  269  (1883) ;  AlcMillen 
V.  Watt,  27  Ohio  St.  306  (1875). 

A.  excavated  on  his  lot,  leaving  a  strip  adjoining  B.'s  land.  B.'s  house 
did  not  fall  until,  by  the  action  of  rain  and  wind  upon  the  retaining  strip, 
brought  about  by  A.'s  not  finishing  his  cellar,  it  was  gradually  eroded  and 
finally  became  insufficient  to  retain  B.'s  land  and  house.  Held,  B.  has  a 
cause  of  action  against  A.  for  the  damage  caused  to  the  house.  Hannicker 
V.  Lepper,  20  S.  D.  371,  107  N.  W.  202,  6  L.  R.  A.  (N.  S.)  243,  129  Am.  St.  Rep. 
938  (1906).     See  Austin  v.  Hudson  River  R.  Co.,  25  N.  Y.  334  (1862).     Com- 


54  BIGHTS  INCIDENTAL  TO   POSSESSION  (Part  1 

CHAPTER  IV 
STREAMS 


EMBREY  V.  OWEN. 

(Court  of  Exchequer,   1851.  6  Exch.  353.) 

The  plaintiffs  were  occupiers  of  a  water  grist-mill  situate  on  the 
banks  of  the  river  "Rhiew,"  a  mountain  stream,  in  the  parish  of  Ber- 
riew,  in  that  county.  The  defendant  Mrs.  Owen  was  the  owner  of 
land  on  both  sides  of  that  river  above  the  mill ;  and  this  action  was 
brought  against  her  for  diverting  part  of  the  water  of  the  river,  for 
the  purpose  of  irrigating  certain  meadows  on  the  northern  bank, 
which  were  in  the  occupation  of  her  tenant  John  Jones.  The  water 
was  diverted  by  means  of  an  iron  trough  or  aqueduct  placed  near  a 
waste  weir,  from  whence  the  surplus  or  waste  water  was  carried  into 
the  trough  or  aqueduct,  and  by  it  over  the  river  into  the  main  and  float- 
ing gutters  of  the  meadows,  when  required  for  irrigation ;  at  other 
times  such  surplus  water  was  discharged  from  the  trough  or  aqueduct 
direct  into  the  bed  of  the  river  by  means  of  an  iron  flap  or  sluice  in 
the  middle  side  of  the  trough,  so  constructed  as  to  be  opened  for  the 
latter  purpose  at  pleasure.  A  portion  of  the  water  was  lost  by  ab- 
."rorption  and  evaporation  in  the  process  of  irrigation;  the  working 
of  the  plaintiffs'  mill,  however,  was  not  in  the  least  impeded ;   and  tlie 

pare  Gilmove  v.   Driscoll,   ante,  p.  49 ;    Witherow  v.  Tannehill.  194   Pa.  21, 
44  All.  loss  (1899) ;  compare  U.  S.  v.  Peachy  (D.  C.)  36  Fed.  160  (1S8S). 

A.  and  B.  were  adjacent  lando.wners.     A.  started  to  build ;  the  land  was 
■xX_-<LxO-t>OwM       swampy ;  and,  in  excavating  a  large  amount  of  water  worked  from  B.'s  land 
"^^-^-""'^^^^^      ^Q  .^  'g  excavation.     As  a  consequence  of  the  withdrawal  of  this  water  sup- 
port B.'s  house  and  land  sunk  and  were  daniacred.     B.'s   land  would  have 


J^L^      <J 


^•£,^,*<**C    sunk,  even  had  there  been  no  building  on  it.     Held,  B.  has  no  right  of  action 

^    ^'*-*^**^     against  A.     Popplewell  v.  Hodkinson,  L.  R.  4  Exch.  248  (1869).     Ace:     New 

York  Continental  .Tewell  Filtration  Co.  v.  Jones,  37  App.  D.  C.  511,  37  L.  K. 

^^^—^-^  A.  (N.  S.)  193    (1911).     Compare  Elliot  v.  N.   E.   Ry.  Co.,  10  H.  L.  Cas.  333 

:^.       /f  (186.3). 

"  A.,  in  excavating  on  his  own  land,   encountered   a   stratum  of  quicksand 

or  water-logged  soil,  which  ran  from  under  B.'s  land  as  fast  as  dug  away  by 
A.  As  a  consequence  B.'«  land  and  house  sunk  and  were  damaged.  Held,  K. 
has  a  right  of  action  against  A.  Jordeson  v.  Gas  Co.,  [1899]  2  Ch.  217.  Ace: 
Cabot  V.  Kingman,  160  Mass.  403,  44  N.  E.  344,  33  L.  R.  A.  45  (1896). 

A.  and  B.  were  adjacent  owners  of  lands,  the  value  of  which  lay  in  ex- 
tensive substrata  of  asphalt.     B.  excavated  on  his  laud  immediately  up  to 
'   y^     ,y^         A.'s  boundary.     The  asphalt  oozed  from  A.'s  land  to  B.'s,  causing  A.'s  land 
L^^^  je/<L-C/'         and  cheap  frame  buildings  thereon  to  sink.     Held,  A.  may  enjoin   B.  from 
further  excavating,  and  may  recover  for  the  damage  caused  by  the  subsidence 
-i^/^-J"  and  the  value  of  the  asphalt  so  obtained  by  B.     Trinidad  Asphalt  Co.  v.  Am- 

/  bard,  [1899]  A.  C.  594.     See,  also,  Salt  Union  v.  Brunner,  [1906]  2  K.  B.  822 ; 

/A  J       Hendricks  v.  Spring  Valley  Miu.  &  Irr.  Co.,  58  Cal.  190,  41  Am.  iiep.  257 
^'-^^^       (1881). 


Ch.  4)  STREAMS  55 

quantity  thus  lost  was  differently  calculated  by  scientific  .witnesses 
on  both  sides,  a  witness  for  the  plaintiffs  estimating  it  at  four  or  live 
per  cent.,  and  a  witness  for  the  defendant  at  only  one-seventh  per 
cent.,  even  in  summer.  All  the  witnesses  concurred,  that  there  was 
no  sensible  diminution  of  the  stream  by  reason  of  the  diversion,  that 
is  to  say,  none  cognizable  by  the  senses,  and  that  the  amount  of  loss 
was  ascertainable  only  by  inference  from  scientific  experiments  on 
the  absorption  and  evaporation  of  water  poured  out  on  the  soil. 

The  learned  Judge,  with  reference  to  the  first  issue,  left  to  the 
jury  the  question,  whether  there  was  any  sensible  diminution  of  the 
natural  flow  of  the  water  by  means  of  the  diversion;  and  with  refer- 
ence to  the  other  issues,  he  left  it  to  them  to  say,  in  the  terms  of  the 
pleas,  whether  the  quantities  of  water  absorbed  and  evaporated  in  the 
process  of  the  defendant's  irrigation  were  small  and  inappreciable 
quantities ;  intimating,  however,  that  he*  felt  great  difficulty  in  fixing 
a  legal  meaning  on  this  latter  term,  but  suggesting  that  it  might  mean 
"so  inconsiderable  as  to  be  incapable  of  price  or  value."  Both  the 
questions  left  to  the  jury  having  been  answered  by  them  in  favour  of 
ihe  defendant,  the  former  in  the  negative  and  the  latter  in  the  affirma- 
tive, the  learned  Judge  directed  that  the  verdict  should  be  entered  on 
the  above  issues  for  the  defendant,  reserving  leave  to  the  plaintiff's  to 
move  to  enter  it  for  them,  with  nominal  damages.^ 

Parke,  B.  *  *  *  The  important  question  is  that  which  arises 
on  the  plea  of  not  guilty,  the  jury  having  found  that  no  sensible  diminu- 
tion of  the  natural  flow  of  the  stream  to  the  plaintiff's  mill  was  caused 
by  the  abstraction  of  the  water.  That  the  working  of  the  mill  was 
not  in  the  least  impeded  was  clear  on  the  evidence.  On  that  finding 
we  think  the  verdict  was  properly  ordered  to  be  entered  for  the  de- 
fendant. 

It  was  very  ably  argued  before  us  by  the  learned  counsel  for  the 
plaintiff,  that  the  plaintiff's  had  a  right  to  the  full  flow  of  the  water 
in  its  natural  course  and  abundance,  as  an  incident  to  their  property  in 
the  land  through  which  it  flowed;  and  that  any  abstraction  of  the  wa- 
ter.  however  inconsiderable,  by  another  riparian  proprietor,  and 
though  productive  of  no  actual  damage,  would  be_actionable.  be- 
cause  it  ^yas  an  injury  to  a  right,  and,  if  continued, ._ would  be,. the 
foundation  of  a  claim  of  adverse  right  in  that  proprietor- 

We  byno  means  dispute  the  truth  of  this  proposition,  with  respect 
to  every  description  of  right.  Actual  perceptible  damage  is  not  in- 
dispensable as  the  foundation  pf  an  action ;  it  is  sufficient  to  show 
the  violation  "of  a  right,  in  which  case  the  law  will  presume  damage; 
injuria  sine  damno  is  actionable,  as  was  laid  down  in  the  case  of  Ashby 
V.  White,  2  Ld.  Raym.  938,  by  Lord  Holt,  and  in  many  subsequent 
cases,  which  are  all  referred  to,  and  the  truth  of  the  proposition  pow- 
erfully enforced,  in  a  very  able  judgment  of  the  late  Mr.  Justice  Story 

1  The  stateiuont  of  facts  is  abridged  and  part  of  tlie  opiniou  is  omitted. 


56  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part   1 

in  Webb  v.  The  Portland  Manufacturing  Company,  3  Sumn,  Rep.  189. 
But  in  applying  this  admitted  rule  to  the  case  of  rights  to  running 
water,  and  the  analogous  cases  of  rights  to  air  and  Hght,  it  must  be 
considered  what  the  nature  of  those  rights  is,  and  what  is  a  viola- 
tion of  them.     *     *     * 

The  right  to  have  the  stream  to  flow  in  its  natural  state  without 
diminution  or  alteration  is  an  incident  to  the  property  in  the  land 
through  which  it  passes ;  but  flowing  water  is  publici  juris,  not  in 
the  sense  that  it  is  a  bonum  vacans,  to  which  the  first  occupant  may 
acquire  an  exclusive  right,  but  that  it  is  public  and  common  in  this 
sense  only,  that  all  may  reasonably  use  it  who  have  a  right  of  access 
to  it,  that  none  can  have  any  property  in  the  water  itself,  except  in 
the  particular  portion  which  he  may  choose  to  abstract  from  the  stream 
and  take  into  his  possession,  and  that  during  the  time  of  his  possession 
only.  See  5  B.  &  Ad.  24.  But  each  proprietor  of  the  adjacent  land  has 
the  right  to  the  usufruct  of  the  stream  which  flows  through  it. 

This  right  to  the  benefit  and  advantage  of  the  water  flowing  past 
his  land  is  not  an  absolute  and  exclusive  right  to  the  flow  of  all  the 
water  in  its  natural  state;  if  it  were,  the  argument  of  the  learned 
counsel,  that  every  abstraction  of  it  would  give  a  cause  of  action,  would 
be  irrefragable ;  but  it  is  a  right  only  to  the  flow  of  the  water,  and 
the  enjoyment  of  it,  subject  to  the  similar  rights  of  all  the  proprietors 
of  the  banks  on  each  side  to  the  reasonable  enjoyment  of  the  same 
gift  of  Providence. 

It  is  only  therefore  for  an  unreasonable  and  unauthorized  use,  of 
this  common  benefit  that  an  action  will  lie ;  for  such  an  use  it  will ; 
even,  as  the  case  above -cited  from  the  American  Reports  shows,  though 
there  may  be  no  actual  damage  to  the  plaintiff.  In  the  part  of 
Kent's  Commentaries  to  which  we  have  referred,  the  law  on  this  sub- 
ject is  most  perspicuously  stated,  and  it  will  be  of  advantage  to  cite  it 
at  lefigth :  "Every  proprietor  of  lands  on  the  banks  of  a  river  has 
naturally  an  equal  right  to  the  use  of  the  water  which  flows  in  the 
stream  adjacent  to  his  lands,  as  it  was  wont  to  run  (currere  solebat), 
without  diminution  or  alteration.  No  proprietor  has  a  right  to  use 
the  water  to  the  prejudice  of  other  proprietors,  above  or  below  him, 
unless  he  has  a  prior  right  to  divert  it,  or  a  title  to  some  exclusive 
enjoyment.  He  has  no  property  in  the  water  itself,  but  a  simple 
usufruct  while  is  passes  along.  'Aqua  currit  et  debet  currere'  is  the 
language  of  the  law.  Though  he  may  use  the  water  while  it  runs  over 
his  land,  he  cannot  unreasonably  detain  it,  or  give  it  another  direction, 
and  he  must  return  it  to  its  ordinary  channel  when  it  leaves  his  estate. 
Without  the  consent  of  the  adjoining  proprietors,  he  cannot  divert  or 
diminish  the  quantity  of  water  which  would  otherwise  descend  to  the 
proprietors  below,  nor  throw  the  water  back  upon  the  proprietors 
above,  without  a  grant,  or  an  uninterrupted  enjoyment  of  twenty  years, 
which  is  evidence  of  it.  This  is  the  clear  and  settled  general  doctrine 
on  the  subject,  and  all  the  difficulty  tliat  arises  consists  in  the  applica- 


Ch.  4)  STREAMS  57 

tion.  The  owner  must  so  use  and  apply  the  water  as  to  work  no  ma- 
terial injury  or  annoyance  to  his  neighbour  below  him,  who  has  an 
equal  right  to  the  subsequent  use  of  the  same  water;  nor  can  he,  by 
dams  or  any  obstruction,  cause  the  water  injuriously  to  overflow  the 
grounds  and  springs  of  his  neighbour  above  him.  Streams  of  water 
are  intended  for  the  use  and  comfort  of  man;  and  it  would  be  un- 
reasonable, and  ^contrary  to  the  universal  sense  of  mankind,  to  debar 
every  riparian  proprietor  from  the  application  of  the  water  to  do- 
mestic, "agricultural,  and  manufacturing  purposes,  provided  the  use  of 
it  be  made  under  the  limitations  which  have  been  mentioned ;  and  there 
will,  no  doubt,  inevitably  be,  in  the  exercise  of  a  perfect  right  to  the 
use  of  the  water,  some  evaporation  and  decrease  of  it,  and  some  varia- 
tions in  the  weight  and  velocity  of  the  current.  But  de  minimis  non 
_curat  lex,  and  a  right  of  action  by  the  proprietor  below  would  not 
necessarily  flow  from  such  consequences,  but  would  depend  upon 
the  nature  and  extent  of  the  complaint  or  injury,  and  the  manner  of 
using  the  water.  All  that  the  law  requires  of  the  party  by  or  over 
whose  land  a  stream  passes,  is,  that  he  should  use  the  water  in  a 
reasonable  manner,  and  so  as  not  to  destroy,  or  render  useless,  or  ma- 
terially diminish  or  affect  the  application  of  the  water  by  the  proprie- 
tors above  or  below  on  the  stream.  He  must  not  shut  the  gates  of  his 
dams  and  detain  the  water  unreasonably,  or  let  it  off  in  ynusual  quanti- 
ties, to  the  annoyance  of  his  neighbour.  Pothier  lays  down  the  rule 
very  strictly,  that  the  owner  of  the  upper  stream  must  not  raise  the 
water  by  dams,  so  as  to  make  it  fall  with  more  abundance  and  rapidity 
than  it  would  naturally  do,  and  injure  the  proprietor  below.  But  this 
rule  must  not  be  construed  literally,  for  that  would  be  to  deny  all  val- 
uable use  of  the  water  to  the  riparian  proprietors.  It  must  be  sub- 
jected to  the  qualifications  which  have  been  mentioned,  otherwise  riv- 
ers and  streams  of  water  would  become  utterly  useless,  either  for  man- 
ufacturing or  agricultural  purposes.  The  just  and  equitable  principle 
is  given  in  the  Roman  law :  'Sic  enim  debere  quem  meliorem  agrum 
suum  facere,  ne  vicini  deteriorem  faciat.'  " 

_ln^ America,  as  may  be  inferred  from  this  extract,  and  as  is  stated 
in  the  jiidgiTient  of  the  Court  of  Exchequer  in  Wood  v.  Waud,  a  very 
liberal  use  of  the  stream  for  the  purposes  of  irrigation  and  for  carry- 
ing  orTmanufactures  is  permitted.  *  *  *  It  is  entirely  a  question 
of  degree,  and  it  is  very  difficult,  indeed  impossible,  to  define  precisely 
the  limits  which  separate  the  reasonable  and  permitted  use  of  the 
stream  from  its  wrongful  application;  but  there  is  often  no  difficulty 
in  deciding  whether  a  particular  case  falls  within  the  permitted  limits 
or  not;  and  in  this  we  think,  that  as  the  irrigation  took  place,  not 
continuously,  but  only  at  intermittent  periods,  when  the  river  was 
full,  and  no  damage  was  done  thereby  to  the  working  of  the  mill, 
and  the  diminution  of  the  water  was  not  perceptible  to  the  eye,  it 
was  such  a  reasonable  use  of  the  water  as  not  to  be  prohibited  by  law. 
If  so,  it  was  no  infringement  of  the  plaintift's'  right  at  all;   it  was  only 


58  RIGUTS   INCIDENTAL  TO   POSSESSION  (Part   1 

the  exercise  of  an  equal  right  which  the  defendant  had  to  the  usufruct 
of  the  stream. 

We  are  therefore  of  opinion  that  there  has  been  no  injury  in  fact  or 
law  in  this  case,  and  consequently  that  the  verdict  for  the  defendant 
ought  not  to  be  disturbed. 

The  same  law  will  be  found  to  be  applicable  to  the  corresponding 
rights  to  air  and  light.  These  also  are  bestowed  by  Providence  for  the 
common  benefit  of  man ;  and  so  long  as  the  reasonable  use  by  one  man 
of  this  common  property  does  not  do  actual  and  perceptible  damage 
to  the  right  of  another  to  the  similar  use  of  it,  no  action  will  lie.  A 
man  cannot  occupy  a  dwelling  and  consume  fuel  in  it  for  domestic 
purposes,  without  its  in  some  degree  impairing  the  natural  purity  of 
the  air ;  he  cannot  erect  a  building,  or  plant  a  tree,  near  the  house  of 
another,  without  in  some  degree  diminishing  the  quantity  of  light  he 
enjoys;  but  such  small  interruptions  give  no  right  of  action;  for  they 
are  necessary  incidents  to  the  common  enjoyment  by  all. 


WEBB  V.  PORTLAND  MFG.  CO. 

(Circuit  Court  of  the  United  States,  D.  Maine,  1S38.    3  Sumn.  189,  Fed.  Cas. 

No.  17,322.) 

Bill  in  equity  for  an  injunction  by  the  plaintiff  to  prevent  the  de- 
fendant from  diverting  a  watercourse  from  the  plaintiff's  mill,  and 
for  further  relief. 

The  facts  admitted  on  all  sides  were,  that  at  the  Saccarappi  Falls, 
on  the  river  Presumpscut,  there  were  two  successive  falls,  upon  which 
there  are  erected  certain  mills  and  milldams,  the  latter  being  called  tlie 
upper  and  the  lower  milldams,  and  the  distance  between  them  is  about 
forty  or  fifty  rods;  and  the  water  therein  constituted  the  mill-pond 
of  the  lower  dam.  The  plaintiff  is  the  owner  of  certain  mills  and  mill 
privileges,  in  severalty,  upon  the  lower  dam,  and  the  defendants  are 
entitled  to  certain  other  mills  and  mill  privileges  on  the  same  dam, 
also  in  severalty.  As  to  a  portion  of  one  of  the  mills,  there  was  a 
controversy  between  the  parties  in  regard  to  title ;  but  that  controversy 
in  no  essential  degree  affected  the  question  presented  to  the  court. 
The  defendants  are  the  owners  of  a  cotton-factory  mill  near  the  left 
bank  of  the  river,  and  opened  a  canal  for  the  supply  of  the  water 
necessary  to  work  that  mill,  into  the  pond  immediately  below  the  upper 
dam ;  and  the  water  thus  withdrawn  was  returned  again  into  the 
river  immediately  below  the  lower  dam.  The  defendants  insisted 
upon  their  right  so  to  divert  and  withdraw  the  water,  by  means  of 
their  canal,  upon  the  ground,  that  it  was  a  small  part  only,  (about  one 
fourth)  of  the  water,  to  which,  as  mill  owners  on  the  lower  dam,  they 
were  entitled ;  and  that  there  was  no  damage  whatsoever  done  to  the 
plaintiff's  mill  by  this  diversion  of  the  water.     *     ♦     * 


Ch.  4)  STREAMS  59 

Story,  Circuit  Justice.'  The  question,  which  has  been  argued  upon 
the  suggestion  of  the  court,  is  of  vital  importance  in  the  cause;  and, 
if  decided  in  favor  of  the  plaintiff,  it  supersedes  many  of  the  inquiries, 
to  which  our  attention  must  otherwise  be  directed.  It  is  on  this  ac- 
count, that  we  thought  it  proper  to  be  argued,  separately  from  the  gen- 
eral merits  of  the  cause.  The  argument  for  the  defendants  then  pre- 
sents two  distinct  questions.  The  first  is,  whether,  to  maintain  the  • 
present  suit,  it  is  essential   for  the  plaintiff  to  establish  any  actual  ^  ^ 

djimage.  The, second  is,  whether,  in  point  of  law,  a  mill  owner,  having 
a  right  to  a  certain  portion  of  the  water  of  a  stream  for  the  use  of 
his  mill  at  a  particular  dam,  has  a  right  to  draw  off  the  same  portion, 
or  any  less  quantity  of  the  water,  at  a  considerable  distance  above 
the  dam,  without  the  consent  of  the  owners  of  other  mills  on  the  same 
dam.  In  connection  with  these  questions  the  point  will  also  incidentally 
arise,  whether  it  makes  any  difference,  that  such  drawing  off  of  the 
water  above,  can  be  shewn  to  be  no  sensible  injury  to  the  other  mill 
owners  on  the  lower  dam.  [The  court  answered  the  first  question  in 
the  negative.]^ 

But  I  confess  myself  wholly  unable  to  comprehend,  how  it  can  be 
assumed  in  a  case,  like  the  present,  that  there  is  not  and  cannot  be  an 
actual  damage  to  the  right  of  the  plaintiff.  What  is  that  right?  It 
is  the  right  of  having  the  water  flow  in  its  natural  current  at  all  times 
of  the  year  to  the  plaintiff's  mills.  Now,  the  value  of  the  mill  priv- 
ileges must  essentially  depend,  not  merely  upon  the  velocity  of  the 
stream,  but  upon  the  head  of  water,  which  is  permanently  maintained. 
The  necessary  result  of  lowering  the  head  of  water  permanently,  would 
seem,  therefore,  to  be  a  direct  diminution  of  the  value  of  the  privileges. 
And  if  so,  to  that  extent  it  must  be  an  actual  damage. 

Again,  it  is  said,  that  the  defendants  are  mill-owners  on  the  lower 
dam,  and  are  entitled,  as  such,  to  their  proportion  of  the  water  of 
the  stream  in  its  natural  flow.  Certainly  they  are.  But  where  are  they 
so  entitled  to  take  and  use  it?  At  the  lower  dam;  for  there  is  the 
place,  where  their  right  attaches,  and  not  at  any  place  higher  up  the 
stream.  Suppose,  they  are  entitled  to  use,  for  their  own  mills  on  the 
lower  dam,  half  the  water,  which  descends  to  it,  what  ground  is  there 
to  say,  that  they  have  a  right  to  draw  off  that  half  at  the  head  of  the 
mill-pond?  Suppose,  the  head  of  water  at  the  lower  dam  in  ordinary 
times  is  two  feet  high,  is  it  not  obvious,  that  by  withdrawing  at  the 
head  of  the  pond  one  half  of  the  water,  the  water  at  the  dam  must 
be  proportionally  lowered  ?  It  makes  no  difference,  that  the  defendants 
insist  upon  drawing  off  only  one  fourth  of  what,  they  insist,  they 
are  entitled  to;  for,  pro  tanto,  it  will  operate  in  the  same  manner; 
and  if  they  have  a  right  to  draw  off  to  the  extent  of  one  fourth  of 
their  privilege,  they  have  an  equal  right  to  draw  off  to  the  full  extent 

2  The  statement  of  facts  is  abridged  and  part  of  tlie  opinion  is  omitted. 

3  See  post,  pp.  75,  76. 


60  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part   1 

of  it.  The  privilege,  attached  to  the  mills  of  the  plaintiff,  is  not  the 
privilege  of  using  half,  or  any  other  proportion  merely,  of  the  water 
in  the  stream,  but  of  having  the  whole  stream,  undiminished  in  its 
natural  flow,  come  to  the  lower  dam  with  its  full  power,  and  there  to 
use  his  full  share  of  the  water  power.  The  plaintiff  has  a  title,  not  to 
a  half  or  other  proportion  of  the  water  in  the  pond,  but  is,  if  one  may 
so  say,  entitled  per  my  et  per  tout  to  his  proportion  of  the  whole  bulk 
of  the  stream,  undivided,  and  indivisible,  except  at  the  lower  dam. 

A  suggestion  has  also  been  made,  that  the  defendants  have  fully 
indemnified  the  plaintiff  from  any  injury,  and  in  truth  have  conferred 
a  benefit  on  him,  by  securing  the  water  by  means  of  a  raised  dam,  high- 
er up  the  stream,  at  Sebago  Pond,  in  a  reservoir,  so  as  to  be  capable 
of  affording  a  full  supply  in  the  stream  in  the  dryest  seasons.  To  this 
suggestion  several  answers  may  be  given.  In  the  first  place,  the  plain- 
tiff is  no  party  to  the  contract  for  raising  the  new  dam,  and  has  no« 
interest  therein ;  and  cannot,  as  a  matter  of  right,  insist  upon  its  being 
kept  up,  or  upon  any  advantage  to  be  derived  therefrom.  In  the  next 
place,  the  plaintiff  is  not  compellable  to  exchange  one  right  for  anoth- 
er ;  or  to  part  with  a  present  interest  in  favor  of  the  defendants  at 
the  mere  election  of  the  latter.  Even  a  supposed  benefit  cannot  be 
forced  upon  him  against  his  will ;  and,  certainly,  there  is  no  pretence 
to  say,  that,  in  point  of  law,  the  defendants  have  any  right  to  substi- 
tute, for  a  present  existing  right  of  the  plaintiff's,  any  other,  which 
they  may  deem  to  be  an  equivalent.  The  private  property  of  one  man 
cannot  be  taken  by  another,  simply  because  he  can  substitute  an  equiva- 
lent benefit. 

Having  made  these  remarks,  upon  the  points  raised  in  the  argument, 
the  subject,  at  least  so  far  as  it  is  at  present  open  for  the  consideration 
of  the  court,  appears  to  me  to  be  exhausted.  Whether,  consistently 
with  this  opinion,  it  is  practicable  for  the  defendants  successfully  to  es- 
tablish any  substantial  defence  to  the  bill,  it  is  for  the  defendants,  and 
not  for  the  court,  to  consider. 

I  am  authorized  to  say,  that  the  district  judge  concurs  in  this  opin- 
ion.   Decree  accordingly,* 

*  See  Blue  Ridge  Interurban  R.  Co.  v.  Hendersville  Light  &  Power  Co., 
109  N.  C.  471,  86  S.  E.  296  (1915). 


Ch.  4)  STREAMS  61 

DUMONT  V.  KELLOGG. 
(Supreme  Court  of  Michigan,  1S74.    29  Mich.  420,  18  Am.  Rep.  102.) 

CooLEY,  J.'  The  grievance  complained  of  by  Kellogg  in  the  court 
below  was  that  Dumont  had  constructed  a  dam  across  a  natural  wa- 
ter course,  and  by  means  thereof  wrongfully  detained  the  water  in  the 
stream  to_tlTe_prejudice  and  injury  of  the  plaintiff,  who  was  proprietor 
of  a  mill  previously  erected  on  the  stream  below.  The  reservoir  cre- 
ated by  defendant's  dam  was  quite  a  large  one,  and  plaintiff  gave  evi- 
dence that  the  flow  of  water  in  the  stream  below  was  considerably 
diminished  by  the  increased  evaporation  and  percolation  resulting  from 
the  construction  of  this  dam.  The  plaintiff  had  judgment  in  the  court 
below,  and  the  case  comes  here  upon  exceptions,  the  errors  princi- 
pally relied  upon  being  assigned  upon  the  instructions  to  the  jury, 
and  involving  the  relative  rights  of  riparian  proprietors  to  make  use 
of_the_waters  of  a  running  stream  which  is  common  to  both,  and  to 
delay  its  flow  for  that  purpose. 

The  instructions  given  were  numerous,  and  the  most  of  them  were 
unexceptionable.  Others  appear  to  be  based  upon  a  view  of  the  law 
which  is  not  to  be  reconciled  with  the  authorities.  Of  these  are  the 
following : 

"Every  proprietor  of  lands  on  the  banks  of  a  stream,  and  every 
mill  owner,  has  an  equal  right  to  the  flow  of  the  water  in  the  stream 
as  it  was  wont  to  run,  without  diminution  or  alteration ;  no  proprietor 
has  the  right  to  use  the  water  to  the  prejudice  of  the  proprietors  be- 
low him,  without  the  consent  of  the  proprietors  below;  he  cannot 
divert  or  diminish  the  quantity  which  would  otherwise  descend  to  the 
proprietors  below. 

"He  must  so  use  the  water  as  not  materially  to  affect  the  application 
of  the  water  below  or  materially  diminish  its  quantity. 

"If  the  jury  find,  from  the  evidence,  that  Dumont's  dam  and  pond 
have  diminished,  by  the  increased  evaporation  and  soakage  occasioned 
by  it,  the  flow  of  the  water  in  the  Dumont  creek  one-third,  or  any 
other  material  amount,  and  that  the  plaintiff  has  sustained  damages 
thereby,  then  the  plaintiff  is  entitled  to  recover  in  this  action. 

"The  rights  of  a  riparian  proprietor  are  not  to  be  measured  by  the 
reasonable  demands  of  his  business.  His  right  extends  to  the  use  of 
only  so  much  of  the  stream  as  will  not  materially  diminish  its  quantity, 
so  that  in  this  case  the  question  whether  defendant  needs  the  water  as 
he  uses  it  in  his  business  is  entirely  immaterial. 

"The  defendant  had  the  right  to  build  a  dam  upon  his  land,  but 
he  must  so  construct  the  dam  and  so  use  the  water  as  not  to  injure 
the  plaintiff  below  in  the  enjoyment  of  the  same  water,  according  to 
its  natural  course." 

B  Part  of  the  opinion  is  omitted. 


62  RlGrHTS   INCIDENTAL  TO   POSSESSION  (Part   1 

In  endeavoring  to  determine  the  soundness  of  these  instructions, 
we  may  dismiss  from  the  mind  the  fact  that  the  plaintiff  had  first  put 
the  waters  of  the  stream  to  practical  use,  since  that  fact  gave  him  no 
superiority  in  right  over  the  defendant.  The  settled  doctrine  now 
is  that  priority  of  appropriation  gives  to  one  proprietor  no_superior 
right  to  that  of  the  others,  unless  it  has  been  continued  for  a  period, 
of  time,  and  under  such  circumstances  as  would  be  requisite  to  estal> 
lish  rights  by  prescription.  *  *  *  It  is  not  claimed  that  any  ques- 
tion of  prescription  is  involved,  and  the  case  is  consequently  to  be^ 
regarded  as  only  presenting  for  adjudication  the  relative  rights  of  the^ 
parties  at  the  commion  law  to  make  use  of  the  flowing  waters  of  th£ 
stream,  unaffected  by  any  exceptional  circumstances. 

And  in  considering  the  case  it  may  be  remarked  at  the  outset  that 
it  differs  essentially  from  a  case  in  which  a  stream  has  been  diverted 
from  its  natural  course  and  turned  away  from  a  proprietor  below.  No 
person  has  a  right  to  cause  such  a  diversion,  and  it  is  wholly  a  v/rongful 
act,  for  which  an  action  will  lie  without  proof  of  special  damage.  It 
dift'ers,  also,  from  the  case  of  an  interference  by  a  stranger,  who,  by 
any  means,  or  for  any  cause,  diminishes  the  flow  of  the  water;  for 
this  also  is  wholly  wrongful,  and  no  question  of  the  reasonableness  of 
his  action  in  causing  the  diminution  can  possibly  arise.  And  had  the 
instructions  which  are  excepted  to  been  given  with  reference  to  a 
case  of  diversion,  or  of  obstruction  by  a  stranger,  the  broad  terms 
in  which  the  responsibility  of  the  defendant  was  laid  down  to  the 
jury  might  have  found  abundant  justification  in  the  authorities. 

But  as  betw^een  Jwo  proprietors,  neither  of  whom  has  acquired 
superior  rights  to  the  other,  it  cannot  be  said  that  one  "has  no  right  to 
use  the  water  to  the  prejudice  of  the  proprietor  below  him,"  or  that 
he  cannot  lawfully  "diminish  the  quantity  which  would  descend  to  the 
proprietor  below,"  or  that  "he  must  so  use  the  water  as  not  materially 
to  affect  the  application  of  the  water  below,  or  materially  to  diminish 
its  quantity."  Such  a  rule  would  be  in  effect  this  :  That  the  lower  pro- 
prietor must  be  allowed  the  enjoyment  of  his  full  common-law  riglits 
as  such,  not  diminished,  restrained,  or  in  any  manner  limited  or  quali- 
fied by  the  rights  of  the  upper  proprietor,  and  must  receive  the  water 
in  its  natural  state  as  if  no  proprietorship  above  him  existed.  Such 
a  rule  could  not  be  the  law  so  long  as  equality  of  right  between  the 
several  proprietors  was  recognized,  for  it  is  manifest  it  would  give 
to  the  lower  proprietor  superior  advantages  over  the  upper,  and  in 
many  cases  give  him  in  effect  a  monopoly  of  the  stream. 

Cases  may  unquestionably  be  found  in  which  the  rule  of  law  is  laid 
down  as  broadly  as  it  was  given  by  the  circuit  judge  in  this  case,  but 
an  examination  of  them  will  show  either  that  the  facts  were  essen- 
tially different,  or  that  the  general  language  was  qualified  by  the  con- 
text. Thus  the  language  employed  in  the  first  instruction  as  above 
given  seems  to  have  been  quoted  from  Lord  Tenterden  in  Mason  v. 
Hill,  3  B.  &  Adol.  312.    But  there  it  had  reference  to  a  case  of  diver- 


Ch.  4)  STREAMS  63 

sion  of  water,  and  was  strictly  accurate  and  appropriate.  The  same 
language  substantially  is  made  use  of  in  Twiss  v.  Baldwin,  9  Conn. 
291 ;  Wadsworth  v.  Tillotson,  15  Conn.  Z7Z,  39  Am.  Dec.  391 ;  Arnold 
V.  Foot,  12  Wend.  (N.  Y)  331 ;  and  probably  in  many  other  cases,  and 
is  adopted  by  Chancellor  Kent  in  his  Commentaries  (volume  3,  p.  439). 
See,  also,  Bealey  v.  Shaw,  6  East,  208;  Agawam  Canal  Co.  v.  Ed- 
wards, 36  Conn.  497;  Williams  v.  Alorland,  2  B.  &  C.  913;  Mason 
V.  Hill,  5  B.  &  Adol.  1 ;  Tillotson  v.  Smith,  32  N.  H.  95,  64  Am.  Dec. 
355.  But  as  between  different  proprietors  on  the  same  stream  the 
right  of  each  qualifies  that  of  the  other,  and  the  question  always  is, 
not  merely  whether  the  lower  proprietor  suffers  damage  by  the  use  of 
the  water  above  him,  nor  whether  the  quantity  flowing  on  is  diminished 
by  the  use,  but  whether  under  all  the  circumstances  of  the  case  the 
use  of  the  water  by  one  is  reasonable  and  consistent  with  a  correspond- 
ent enjoyment  of  right  by  the  other.     *     *     * 

It  is  therefore  not  a  diminution  in  the  quantity  of  the  water  alone, 
or  an  alteration  in  its  flow,  or  either  or  both  of  these  circumstances 
combined  with  injury,  that  will  give  a  right  of  action,  if  in  view  of  all 
the  circumstances,  and  having  regard  to  equality  of  right  in  others, 
that  which  has  been  done  and  which  causes  the  injury  is  not  unrea- 
sonable. In  other  words,  the  injury  that  is  incidental  to  a  reasonable 
enjoyment  of  the  common  right  can  demand  no  r.edre;ss. 

We  think  the  court  erred  also  in  declining  to  instruct  the  jury  on 
defendant's  request  that  in  determining  the  question  of  reasonable 
use  by  the  defendant  they  might  consider,  among  other  things,  the 
general  usage  of  the  country  in  similar  cases.  As  was  said  in  Gould 
v.  Boston  Duck  Co.,  13  Gray  (Mass.)  452:  "Usage  is  some  proof  of 
what  is  considered  a  reasonable  and  proper  use  of  that  which  is  a 
common  right,  because  it  affords  evidence  of  the  tacit  consent  of  all 
parties  interested  to  the  .general  convenience  of  such  use."  And  see 
Thurber  v.  Martin,  2  Gray  (Mass.)  394,  61  Am.  Dec.  468 ;  Snow  v. 
Parsons,  28  Vt.  459,  67  Am.  Dec.  723.  Indeed  in  most  cases  this  proof 
is  the  most  satisfactory  and  conclusive  that  could  be  adduced,  being 
established  by  the  parties  concerned,  who  understand  better  than  any 
others  what  is  reasonable  and  convenient,  and  who  would  not  be  likely 
to  acquiesce  in  any  thing  which  was  not  so. 

These  errors  render  it  necessary  to  order  a  new  trial.  Some  of  the 
rulings  on  the  admission  of  evidence  seem  to  have  been  very  liberal, 
but  we  are  not  satisfied  that  they  exceeded  the  bounds  of  judicial  dis- 
cretion. 

The  judgment  will  be  reversed,  with  costs,  and  a  new  trial  ordered. 

The  other  Justices  concurred.^ 

6  A.  was  an  upper,  B.,  a  lower,  riparian.  B.  bad  a  water  wheel  mill.  A. 
kept  back  the  river  by  a  daiu  to  accumulate  suHlcient  water  to  carry  his  logs 
down  by  flood,  releasing  the  water  at  intervals.  This  detention  of  the  wa- 
ter made  it  impossible  for  B.  to  use  his  mill.  Hold,  B.  has  a  right  of  ac- 
tion against  A.     Woodin  v.  Weutworth.  57  Mich.  278,  2.3  X.  W.  Si;{  (ISSu). 

A.,  an  upper  riparian,  raised  his  dam,  and  to  get  his  poud  tilled  shut  off 


64  EIGHTS  INCIDENTAL  TO   POSSESSION  (Part  1 


MENG  V.  COFFEY. 

(Supreme  Court  of  Nebraska,  1903.     67  Neb.  500,  93  N.  W.  713,  60  L.  R.  A. 
910,  108  Am.  St.  Rep.  697.) 

Pound,  C'  This  suit  was  brought  in  1893  to  enjoin  the  defendants, 
upper  riparian  owners  upon  Hat  creek  and  its  several  tributaries,  from 
diverting  the  waters  of  said  streams  for  irrigation  purposes  to  such 
extent  as  to  deprive  the  plaintiff,  a  lower  owner,  of  the  use  of  the 
stream.  Upon  trial  a  decision  was  announced  orally  adverse  to  the 
plaintiff.  On  appeal  to  this  court  it  appeared  that  no  final  decree  had 
been  entered  in  accordance  with  such  announcement,  and  the  appeal 
failed.  Thereafter  a  decree  dismissing  the  cause  and  following  the 
findings  originally  announced  was  duly  entered,  from  which  the  pres- 
ent appeal  is  prosecuted. 

The  defendants  justify  their  diversions  of  the  waters  of  said  streams 
upon  these  grounds:  (1)  Prior  appropriation;  (2)  that  irrigation  of 
meadow  land  to  produce  forage  for  their  stock  is  a  "domestic"  use 

of  the  water,  for  which,  if  necessary,  they  may  consume  the  whole. 

*  *     * 

The  first  two  positions  are  clearly  untenable  if  this  court  is  to  adhere 
to  its  repeated  pronouncements  that  the  rules  of  the  common  law  as  to 

the  rights  and  duties  of  riparian  owners  are  in  force  in  this  state. 

*  *    * 

A  great  deal  of  what  has  been  urged  upon  us  as  demonstrating  the 
inapplicability  of  the  rules  of  the  common  law  upon  this  head  to  con- 
ditions in  Nebraska  proceeds  upon  an  erroneous  impression  of  the  na- 
ture and  purpose  of  such  rules.  Thus,  in  a  brief  in  which  the  subject 
is  most  elaborately  and  exhaustively  discussed,  counsel  say:  "No  ri- 
parian proprietor  in  Nebraska  to-day  is  entitled  to  the  full  flow  of  the 
stream  through  his  premises  just  for  the  pleasure  it  may  give  him  to 
see  the  stream  filling  its  banks.  *  *  *  The  use  of  the  water  belongs 
to  the  people."  And  throughout  that  brief,  and  in  all  the  arguments  we 
have  examined,  it  is  assumed  that  at  common  law  any  taking  of  wa- 
ter from  a  stream  is  an  injury  to  the  riparian  proprietor,  and  that  the 
latter  may  insist  that  no  water  whatever  shall  go  out.  The  common 
law  does  not  hold  to  so  unreasonable  a  rule.  On  the  contrary,  it  con- 
siders running  water  publici  juris,  and,  while  it  will  not  permit  any 
one  man  to  monopolize  all  the  water  of  a  running  stream  when  there 
are  other  riparian  owners  who  need  and  may  use  it  also,  neither  does 
it  grant  to  any  riparian  owner  an  absolute  right  to  insist  that  every 
drop  of  the  water  flow  past  his  land  exactly  as  it  would  in  a  state  of  na- 
ture.    *     *     * 

the  water  entirely  for  two  days  In  June  and  for  four  days  in  July.     Diiring 
these  days  B.,  a  lower  riparian,  was  unable  to  operate  his  mill.     Held.  R.  has 
no  cause  of  action  against  A.    Pitts  v.  Lancaster  Mills,  13  Mete.  (Mass.;  150 
(1847). 
7  Part  of  the  opinion  of  the  Commissioner  is  omitted. 


Cll.  4)  ^  STREAMS  65 

When,  therefore,  counsel  tell  us  that  their  clients  have  a  natural 
right  to  irrigate,  and  that  reasonable  use  of  the  water  is  necessary  in 
exercise  of  that  right,  they  urge  nothing  against  the  rules  of  the  com- 
mon law,  since  the  latter  merely  insist  that  others  along  the  streams  in 
question  have  the  same  natural  right,  and  permit  every  reasonable  use 
by  each  consistent  with  like  use  by  all.  The  apparent  modifications  of 
the  common-law  rules  in  the  semiarid  or  arid  states  in  that  courts  of 
such  states  are  more  liberal  in  their  construction  of  what  is  a  reasona- 
ble use,  are  no  departure  from  the  principles  on  which  the  rules  are 
founded.  On  the  contrary,  they  carry  them  to  their  logical  conclusion 
in  view  of  the  special  conditions  of  such  regions.    *    *    * 

For  the  reasons  indicated,  we  are  of  opinion  that  the  former  holdings 
of  the  court  must  be  adhered  to,  and  that,  except  as  altered  by  statutes, 
the  common-law  rules  are  in  force  in  every  part  of  the  state.  The  de- 
tails of  such  rules  with  respect  to  irrigation,  however,  and  their  ap- 
plication to  irrigation  in  the  semiarid  portions  of  the  state,  have  not,  a', 
yet,  received  careful  consideration  by  this  court.  It  is  generally  rec- 
ognized that  at  common  law  a  riparian  owner  may  take  water  from  a 
stream  for  purposes  of  irrigation.  Embrey  v.  Owen,  6  Exch.  353; 
Elliot  V.  Fitchburg  R.  Co.,  10  Cush.  (Mass.)  191,  57  Am.  Dec.  8.5; 
Gillett  V.  Johnson,  30  Conn.  180;  Ulbricht  v.  Eufaula  Water  Co.,  86 
Ala.  587,  6  South.  78,  4  L.  R.  A.  572.  11  Am.  St.  Rep.  72;  Gould  on 
Waters,  §  617.  At  an  early  day  there  was  a  tendency  to  class  irriga- 
tion among  those  uses  of  a  stream  which  might  be  carried  even  to  en- 
tire consumption  of  its  waters.  But  another  view  has  long  prevailed, 
and  is  now  well  established,  not  only  in  the  eastern  portion  of  the  coun- 
try, but  even  in  the  arid  and  semiarid  states  (so  far  as  such  states  rec- 
ognize the  common-law  doctrine  as  to  riparian  rights),  to  tlie  effect 
that  irrigation  is  one  of  those  uses  which  must  be  exercised  reasonably 
with  due  regard  to  the  rights  of  others.  Low  v.  Schaffer,  24  Or.  239, 
33  Pac.  678;  Gillett  v.  Johnson,  30  Conn.  180;  Black's  Pomeroy,  Wa- 
ter Rights,  §  151;  Gould  on  Waters,  §§  205,  217.  This  subject  has_ 
been  confused  needlessly  by  the  unfortunate  use  of  the  words  "natur- 
ar'^nd  "ordinary"  in  this  connection  to  distinguish  those  uses  which 
the  common  law  does  not  attempt  to  limit,  and  "artificial"  or  "extra- 
ordinary" to  designate  those  which  are  required  to  be  exercised  within 
reasonabTe^boun^s.  It  is  no  doubt  true  that  irrigation  is  a  very  natural 
and  a  very"6rdinary  want,  and  that  use  of  a  stream  for  such  purpose  is 
natural  and  ordinaiy  in  semiarid  regions.  But  such  is  not  the  question. 
The  law  does  not  regard  the  needs  and  desires  of  the  person  taking  the 
water  solely  to  the  exclusion  of  all  other  riparian  proprietors,  but  looks 
rather  to  the  natural  effect  of  his  use  of  the  water  upon  the  stream 
and  the  equaF rights  of  others  therein.  The  true  distinction  appears  to 
lie  between  those  modes  of  use  which  ordinarily  involve  the  taking  of 
small  quantities,  and  but  little  interference  with  the  stream,  such  as 
drinking  and  other  household  purposes,  and  those  which  necessarily  in- 
BiG. Rights — 5 


66  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part  1 

volve  the  taking  or  diversion  of  large  quantities  and  a  considerable 
interference  with  its  ordinary  course  and  flow,  such  as  manufacturing 
purposes.    *     *     * 

It  would  doubtless  be  impolitic  to  give  an  arbitrary  or  hard  and  fast 
meaning  to  the  word  "reasonable"  in  this  connection.  The  use  of  wa- 
ter for  irrigation  always  involves  some  loss,  and  we  do  not  think  it 
would  be  wise  to  declare  every  perceptible  diminution  of  the  waters 
of  a  stream  to  be  unreasonable.  The  necessity  of  a  liberal  view  of 
what  constitutes  a  reasonable  use  of  water  for  irrigation  has  been  ju- 
dicially recognized  (Harris  v.  Harrison,  93  Cal.  676,  29  Pac.  325  ;  Bath- 
gate V.  Irvine,  126  Cal.  135,  58  Pac.  442, 17  Am.  St.  Rep.  158),  and  we 
think  caution  in  that  respect  entirely  proper.  If  the  rights  of  the  up- 
per owner  in  the  water  are  no  more  than  those  of  the  lower  owner,  they 
^e  at  the  same  time  no  less.  His  right  to  reasonable  use  of  the  water 
for  irrigation  ought  not  to  be  rendered  nugatory  by  requiring  it  to  be 
exercised  in  an  impossible  manner.  *  *  * 
^  The  uses  which  an  upper  riparian  owner  may  make  of  a  stream  for 

)  purposes  of  irrigation  must  be  judged,  in  determining  whether  they 

/  are  reasonable,  with  reference  to  the  size,  situation,  and  character  of 

(  the  stream,  the  uses  to  which  its  waters  may  be  put  by  other  riparian 

/  owners,  the  season  of  the  year,  and  the  nature  of  the  region.     These 

circumstances  differ  in  different  cases,  and  what  use  is  reasonable  must 
be  largely  a  question  of  fact  in  each  case.  Lux  v.  Haggin,  69  Cal>  255, 
4  Pac.  919,  10  Pac.  674;  Baker  v.  Brown,  55  Tex.  Z77 ;  Harris  v.  Har- 
rison, 93  Cal.  676,  29  Pac.  325 ;  Minnesota  Loan  &  Trust  Co.  v.  St. 
Anthony  Falls  Water  Power  Co.,  82  Minn.  505,  85  N.  W.  520;  Em- 
brey  v.  Owen,  6  Exch.  353 ;  Pitts  v.  Lancaster  Mills,  13  Mete.  (Mass.) 
156.  Some  things,  however,  are  clearly  unreasonable,  and  it  may  be  laid 
down  absolutely  that  the  upper  owner,  in  using  the  Avater  for  irrigation, 
must  not  waste,  needlessly  diminish,  or  wholly  consume  it,  to  the  injury 
of  other  owners,  nor  so  as  to  prevent  reasonable  use  of  it  by  them  also. 
Union  Mill  Co.  v.  Dangberg,  2  Sawy.  450,  Fed.  Cas.  No.  14,370;  Lux 
V.  Haggin,  69  Cal.  255,  4  Pac.  919,  10  Pac.  674;  Harris  v.  Harrison,  93 
Cal.  676,  29  Pac.  325;  Gould  v.  Eaton,  117  Cal.  539,  49  Pac.  577,  38 
L.  R.  A.  181 ;  Coftman  v.  Robbins,  8  Or.  279 ;  Gillett  v.  Johnson,  30 
Conn.  ISO. 

Judged  in  this  way,  we  think  the  use  made  of  the  streams  in  ques- 
tion by  three  of  the  defendants  may  not  be  said  to  be  reasonable.  Hat 
creek  is  a  small  stream,  about  10  feet  wide  where  it  passes  the  plain- 
tiflF's  lands,  formed  by  the  junction  of  a  number  of  similar  streams  a 
few  miles  above.  Of  these,  Warbonnet  creek,  after  gathering  several 
small  tributaries,  flows  into  IMunroe  creek,  which  is  received  by  Sow- 
belly creek,  and  the  latter  soon  joins  Hat  creek,  into  which,  some  dis- 
tance above,  a  number  of  smaller  streams  have  been  united.    *    *    * 

The  defendant  Brewster  maintains  a  dam  on  Warbonnet  creek,  and  a 
ditch,  by  means  of  which  he  irrigates  some  300  acres.  The  capacity 
of  this  ditch  is  sufficient  to  contain  the  entire  stream.    It  takes  the  wa- 


Ch.  4)  STREAMS  67 

ter  away  from  the  creek  to  a  point  about  a  mile  off,  where  the  dip  is 
but  very  slightly  toward  the  creek,  and  there  discharges  it,  so  that  prac- 
tically all  that  is  not  used  in  irrigation  will,  in  hot  weather,  evaporate, 
and  not  return  to  the  creek.  On  one  occasion,  when  the  season  was 
very  dry  in  that  vicinity,  and  a  number  of  Mr.  Brewster's  neighbors 
below  him  were  complaining  because  they  could  get  no  water,  it  ap- 
pears that  he  was  turning  the  water  upon  a  meadow  of  80  to  100  acres, 
so  that  it  stood  there  from  one  to  one  and  one-half  inches  deep;  and, 
as  we  have  seen,  what  was  not  used  was  substantially  wasted.  This 
is  obviously  unreasonable.  The  defendant  Wilcox  maintains  a  ditch  on 
Munroe  creek,  with  which  he  irrigates  150  acres.  This  ditch  also  is 
sufficient  to  carry  the  whole  stream,  and  the  water  is  so  discharged  that 
none  gets  back  into  the  creek,  since  the  ground  slopes  in  another  di- 
rection at  the  point  of  discharge.  With  respect  to  the  defendant  Cof- 
i£^C,  who  maintains  a  ditch  on  Hat  creek,  with  which  he  irrigates  160 
acres,  the  case  is  not  so  clear.  But  at  the  time  the  writs  were  served  in 
this  case,  while  there  was  an  abundance  of  water  in  his  ditch,  the- sher- 
iff found  the  creek  dry  a  mile  and  a  half  below,  and  the  bed  of  the 
creek  opposite  the  plaintiff  was  so  dry  that  dust  blew  in  it.    *    *    * 

With  respect  to  the  defendant  Steele,  however,  who  is  on  Middle 
Hat  creek,  above  Coffey,  the  evidence  is  that  all  of  the  water  taken 
out  by  him,  except  what  is  consumed  by  evaporation,  goes  back  to  the, 
creek,  and  there  is  no  evidence  of  unreasonable  use  or  of  injury  to 
the  plaintiff.  [The  Commissioner  found  that  until  1893  there  was  no 
undue  user  by  any  of  the  defendants.] 

Per  Curiam.  For  the  reasons  set  forth  in  the  foregoing  opinion, 
the  decree  of  the  district  court  is  affirmed  as  to  the  defendant  Steele, 
but_reyersed  as  to  the  defendants  Coffey,  Brewster,  and  Wilcox,  with 
directions  to  make  new  and  further  findings  of  fact  in  conformity  with 
said  opinion,  and  to  enter  a  decree  enjoining  the  defendant  Wilcox 
from  wasting  or  unreasonably  diminishing  the  waters  of  Munroe  creek, 
and  enjoining  the  defendants  Brewster  and  Coffey  from  consuming 
all  the  waters  of  Warbonnet  and  Hat  creeks,  respectively,  in  the  irri- 
gation of  their  lands,  or  permanently  diverting  in  any  year  a  greater 
proportion  of  the  water  in  such  streams  for  the  time  being  than  they 
were  accustomed  to  take  out  prior  to  1893,  having  regard  to  the  nature 
of  the  season  and  the  condition  of  the  stream  at  the  time;  that  pro- 
portion and  other  questions  of  fact  necessary  to  the  rendition  of  such 
decree  to  be  ascertained  from  the  evidence  already  taken,  or  by  taking 
further  evidence  at  the  discretion  of  the  district  court* 

8  See  Mud  Creek  Irrigation  Agr.  &  Mfg.  Co.  v.  Vivian,  74  Tex.  170,  11  S. 
W.  1078  (18S9). 


68  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part  1 

GARWOOD  V.  NEW  YORK  CENT.  &  H.  R.  R.  CO. 
(Court  of  Appeals  of  New  York,  ISSl.    83  N.  Y.  400,  3S  Am.  Rep.  452.) 

[The  defendant  at  a  point  where  its  roadbed  crossed  a  stream  in- 
stalled pipes  and  drew  away  water  for  use  in  its  locomotives.  This 
diversion  perceptibly  reduced  the  water  in  the  stream  and  materially 
diminished  the  grinding  power  of  the  plaintiff's  mill  lower  down  on 
the  stream.  He  asked  for  damages  and  an  injunction.  He  obtained 
both  in  the  court  below,  and  the  defendant  appealed.] 

Danforth,  j.8  *  *  *  gach  [riparian  proprietor]  has  a  right  to 
the  ordinary  use  of  water  flowing  past  his  land,  that  is,  ad  lavandum 
et  ad  potandum,  for  domestic  purposes  and  his  cattle,  although  some 
portion  may  be  thereby  exhausted ;  and  this  is  so,  without  regard  to 
the  effect  which  such  use  may  have  upon  the  lower  owner.  The  water 
may  also  be  used  for  irrigation  or  for  manufacturing  purposes.  The 
cases  cited  by  the  appellant  are  abundant  to  show  tliis,  but  in  every 
one  the  irrigation  is  of  the  land  to  which  the  right  to  use  the  water 
is  an  incident,  or  with  which  the  manufacturing  purpose  is  connected, 
but  even  this  privilege  cannot  be  exercised  if  thereby  the  lawful  use 
of  the  water  by  a  lower  proprietor  is  interfered  with  to  his  injury. 
Miner  v.  Gilmour,  12  Moore,  156;  Tyler  v.  Wilkinson,  4  Mason,  397, 
Fed.  Cas.  No.  14,312.  Now  in  the  case  before  us  the  defendant  has 
done  something  more ;  it  has  not  been  content  with  exercising  this 
privilege ;  it  has  diverted  a  considerable  portion  of  the  stream  not  for 
any  use  upon  the  land  past  which  it  flows,  but  for  the  transaction 
of  its  business  in  other  places  and  for  purposes  in  no  respect  pertaining 
to  the  land  itself.  The  pipes  and  reser^^oirs  of  the  defendant  are  not 
laid  or  constructed  for  the  mere  purpose  of  detaining  the  water  a 
short  time,  or  applying  it  to  machinery  or  other  object  upon  the  land 
itself,  and  afterward  restoring  it,  but  for  facility  in  filling  the  defend- 
ant's locomotives,  in  order  that  they,  with  power  generated  from  it, 
may  pass  as  the  interest  of  the  defendant  may  require,  to  the  east  or 
wQst,  returning  no  portion  of  it,  even  in  the  form  of  vapor,  to  the 
stream  from  which  it  was  taken.  So  far  as  the  plaintiff  is  concerned, 
it  has  cajried  away  from  his  premises  the  water  as  effectually  as  jf 
it  had  been  turned  into  another  channel  and  discharged  at  Albany  or 
Buffalo;  and  from  this,  as  the  jury  has  found,  he  has  sustained  dam- 
age. Not  only  this,  but  it  has  been  done  under  a  claim  of  right  by  the 
defendant,  which,  if  acquiesced  in  by  the  plaintiff,  would  in  course 
of  time  ripen  into  a  realty  and  destroy  the  incident  of  his  property — 
the  right  of  the  plaintiff  as  riparian  owner  to  have  the  water  flow 
as  it  had  theretofore  been  accustomed  to  flow.  For  in  that  case,  al- 
though the  defendant  could  not  claim  the  right  as  riparian  proprietor, 
it  might  claim  it  by  prescription;    and  to  prevent  this  result  also,  the 

»  The  statement  of  facts  is  rewritten  and  part  of  tlie  opinion  is  omitted. 


Ch.  4)  STREAMS  69 

plaintiff  had  a  clear  right  to  an  injunction.  The  terms  of  the  one  grant- 
ed are  sufficiently  well  guarded.  The  defendant  is  "restrained"  only 
"from  diverting  the  water  to  the  injury  of  the  plaintiff." 

But  the  learned  counsel  for  the  appellant  contends  that  inasmuch 
as  both  plaintiff  and  defendant  require  the  water  for  artificial  as  dis- 
tinguished from  natural  uses — the  one  as  a  power  for  mill  purposes, 
the  other  as  material  or  the  means  of  producing  power  for  railroad 
purposes,  it  may  be  abstracted  by  the  defendant,  even  to  the  other's 
injury,  although  he  concedes  the  rule  would  be  different  if  the  plaintiff 
required  the  water  for  natural  purposes.  It  is  difficult  to  see  how  such 
a  distinction  can  be  maintained.  The  plaintiff  requires  the  current 
because  its  momentum  supplies  power.  The  defendant,  as  riparian 
owner,  has  no  right  to  remove  the  water  and  so  diminish  it.  If  the 
defendant's  use  was  for  natural  purposes  there  might  be  some  reason 
for  giving  it  priority;  but  this  is  not  pretended.  To  justify  a  use  be- 
yond that  a  grant  or  license  would  be  necessary.  The  defendant  ex- 
hibits neither,  but  in  its  answer  asserts  that  its  use  has  been  adverse 
to  the  plaintiff  for  more  than  twenty  years.  The  evidence  does  not 
sustain  the  claim.  As  to  it  therefore  the  case  presents  no  exception 
to  the  rule,  that  a  riparian  proprietor  has  no  right  to  divert  any  part  /<3^^(^ 
o^the  water  of  the  stream  into  a  course  different  from  that  in  which 
it  has  been  accustomed  to  flow,  for  any  purpose,  to  the  prejudice  of 
any  other  riparian  owner.  This  is  the  doctrine  both  of  the  common 
^andTcivil  law  (3  Kent  Com.  58-5),  and  it  stands  upon  the  familiar  maxim, 
sic  utere  tuo  ut  non  laedas  alieno.  In  substance  the  defendant's  claim 
is  that  it  has  a  right  to  use  all  the  water  it  pleases;  but  it  does  not 
show  the  origin  or  foundation  of  the  right.  As  the  case  stands  then 
the  defendant  has  diverted  the  water  without  right  and  to  the  plain- 
tiff's injury;  its  use  therefore  could  not  be  reasonable,  and  the  in- 
quiry desired  by  the  defendant,  as  to  whether  it  was  or  not,  would 
not  be  applicable.     *     *     * 

Judgment  appealed  from  affirmed,  with  costs.^* 


GILLIS  V.  CHASE  et  al. 

(Supreme  Court  of  New  Hampshire,  1S91.     67  N.  H.  161,  31  Atl.   18,  6S 
Am.  St.  Rep.  645.) 

Case,  for  diverting  water  and  diminishing  the  flow  upon  the  plain- 
tiff's land.    Facts  found  by  the  court. 

The  plaintiff  and  one  J.  S.  Winn  are  riparian  owners,  Winn's  land 
being  above  the  plaintiff's.  About  fifteen  years  ago  Winn  built  a 
dam  to  hold  back  the  water,  thus  forming  a  reservoir  from  which  by 

loAcc:  Even  though  the  diversion  might  not  have  substantially  damaged 
the  plaintiff's  mill.  McCartney  v.  Londonderry,  etc.,  Ry.  Co..  [1904]  A.  C. 
301,  overruling  Earl  of  Sandwich  v.  Gt.  Northern  Ry.  Co.,  U  R  10  Ch.  Div. 
707  (1S78). 


70  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part  1 

an  aqueduct  he  supplied  water  to  his  far/n  buildings.  He  also  permit- 
ted the  defendants,  who  are  not  riparian  owners,  to  connect  aqueducts 
with  the  reservoir  and  thereby  supply  their  buildings  with  water,  con- 
veying to  them  by  deed  a  right  to  such  use.  The  defendants  all  claim 
the  right  to  take  the  water  from  the  reservoir  under  J.  S.  Winn,  the 
owner  of  the  land  where  the  reservoir  is  located,  and  the  owner  of 
a  part  of  the  meadow  from  which  the  water  is  collected.  The  use 
of  the  water  made  by  the  several  defendants  is  reasonable  as  to  the 
quantity  used,  and  the  sale  of  the  water  by  Winn  to  them  is  a  rea- 
sonable use  of  it.  The  water  used  does  not  return  to  the  stream,  but 
the  amount  is  so  small  as  to  make  no  difference  that  would  probably 
be  perceptible  in  the  stream  flowing  through  the  plaintiff's  land. 

Blodgett,  J.  The  case  finds  that  "the  defendants  all  claim  the 
right  to  take  the  water  from  the  reservoir  under  J.  S.  Winn,  the  owner 
of  the  land  where  the  reservoir  is  located,  and  the  owner  of  a  part 
of  the  meadow  from  which  the  water  is  collected." 

In  virtue  of  this  ownership,  Winn's  right  to  divert  the  water  for 
use  to  a  reasonable  extent  was  incident  to  the  land ;  and,  as  the  plain- 
tiff has  failed  to  show  any  actual  damage,  it  is  only  for  an  unreasonable 
and  unauthorized  diversion  that  the  law  will  imply  damage  to  him,  be- 
cause each  riparian  proprietor  having  the  right  to  a  just  and  reasona- 
ble use  of  tlie  water  as  it  passes  through  and  along  his  land,  it  is 
only  when  he  transcends  his  right  by  an  unreasonable  and  unauthorized 
use  of  it  that  an  action  will  lie  against  hirn  by  another  proprietor  whose 
common  and  equal  right  to  the  flow  and  enjoyment  of  the  water  is 
thereby  injuriously  affected.  And  as  the  reasonableness  of  the  use 
is,  to  a  considerable  extent,  a  question  of  degree,  and  largely  dependent 
on  the  circumstances  of  each  case,  it  is  to  be  judged  of  by  the  jury, 
and  must  be  determined  at  the  trial  term  as  a  mixed  question  of  law 
and  fact.  Jones  v.  Aqueduct,  62  N.  H.  488,  490;  Rindge  v.  Sargent, 
64  N.  H.  294,  295,  9  Atl.  723.  This  question  having  been  found  ad- 
versely to  the  plaintiff  by  the  trial  court,  the  finding  is  conclusive  against 
hjm  (Jones  v.  Aqueduct,  supra),  and  consequently  the  only  question 
now  open  to  him  is  as  to  the  right  of  Winn,  in  his  character  as  a  ri- 
parian proprietor,  to  sell  the  non-riparian  defendants  any  of  the  wa- 
ter belonging  to  him  as  incident  to  his  land. 
The  English  rule,  is  understood  to  be,  that  "A  riparian  owner  can- 
not, except  as  against  himself,  confer  on  one  who  is  not  a  riparian  own- 
er any  right  to  use  the  water  of  the  stream,  and  any  user  by  a  non- 
riparian  proprietor,  even  under  a  grant  from  a  riparian  owner,  is 
wrongful."  Ormerod  v.  Mill  Co.,  L.  R.  11  Q.  B.  155 ;  Swindon  Water 
Works  Co.  V.  Wilts  &  Berks  Canal  Nav.  Co.,  L.  R.  7  H.  L.  697 ;  Nut- 
tal  V.  Bracewell,  L.  R.  2  Ex.  1.  But  the  rule  is  otherwise  in  this  juris- 
diction, for  it  is  held  here  to  be  a  question  of  fact,  whether  the  use 
"oTthe  water  made  by  a  riparian  owner  for  his  own  purposes,  or  for 
sale  to  others,  is,  under  all  the  circumstances,  a  reasonable  use.  Jones 
v.  Aqueduct  and  Rindge  v.  Sargent,  supra.    And  in  view  of  the  finding 


'^ 


Ch.  4)  STREAMS  71 

that  the  sale  of  the  water  to  the  defendants  by  Whin  is  a  reasonable 
use  of  his  right  as  a  riparian  owner,  the  plaintiff  has  no  standing  on 
this~Branch  of  the  case. 

Judgment  for  the  defendants. 

Clark,  J.,  did  not  sit;  the  others  concurred.** 


JONES  et  al.  v.  CONN. 

(Supreme  Court  of  Oregon,  1901.    39  Or.  30,  64  Pae.  855,  65  Pac.  1068,  54  L. 
R.  A.  630,  87  Am.  St.  Rep.  634.) 

Bean,  C.  J.*'  This  is  a  controversy  between  riparian  proprietors 
upon  a  natural  water  course.  There  is  virtually  but  one  question  in- 
volved in_thejcase^  and  that  is  whether  the  lands  which  the  defendant 
seeks  to  irrigate  are  riparian  in  character.  It  is  practically  conceded 
'tHaFup  to  "the  commencement  of  the  suit  the  plaintiffs  had  not  been  sub- 
jtantially  injured  or  damaged  on  account  of  the  use  of  the  water  by 
the_defendant,  and,  as  a  consequence,  are  not  entitled  to  an  injunction 
i^  the  lands  are  riparian ;  but  the  contention  is  that  they  are  nonripa- 
rian7  and  therefore  the  plaintiffs  are  entitled  to  an  injunction  restrain- 
ing the  use  of  the  water  thereon  without  proof  of  damage.     *     *     *- 

The  plaintiffs  admit  the  rule  that,  after  the  natural  wants  of  all  the 
riparian  proprietors  have  been  supplied,  each  is  entitled  to  a  reasonable 
use  of  the  water  for  irrigating  purposes,  but  insist  that  the  exercise  of 
the  right  must  be  limited  to  the  tract  of  land  through  -vt'hich  the  stream 
flows  as  first  segregated  and  sold  by  the  government  of  the  United 
States,  and  that,  even  in  such  a  case,  where  there  are  natural  barriers 
within  the  tract  which  would  prevent  a  portion  of  the  land  from  de- 
riving any  benefit  from  the  flow  of  the  stream,  the  portion  lying  be- 
yond the  barrier  should  be  excluded.  But,  as  we  understand  the  law, 
lands  bordering  on  a  stream  are  riparian,  without  regard  to  their  ex- 
tent. After  a  considerable  search,  we  are  unable  to  find  any  rule  de- 
termining when  part  of  an  entire  tract  owned  by  one  person  ceases  to 
be  riparian.     *     *     * 

It  would  seem,  that  any  person  owning  land  which  abuts  upon  or_ 
through  which  a  natural  stream  of  water  flows  is  a  riparian  proprietor, 

11  Contra:  Ormerod  v.  Todmorden  Mill  Co.,  L.  R.  11  Q.  B.  D.  155  (1S83). 
See  Elliot  v,  Fitcliburg  R.  R.  Co.,  10  Cush.  (G4  Mass.)  191,  57  Am.  Dec.  85 
(1852). 

In  many  of  the  semi-arid  states  of  the  West  the  common-law  doctrines 
relating  to  rischts  in  Streams  have  been  done  away  with  in  favor  of  the  so- 
called  appropriation  doctrine,  viz.,  that  the  use  of  the  stream  belongs  to 
the  persoiP^ho  first  appropriates  it  to  his  own  use,  to  the  extent  that  he  so 
appropriates.  See  ^Yie\.  Water  llights  in  the  Western  States  (3d  Ed.)  parts 
I,  II,  III:  part  IV,  c.  40. 

12  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


72  '  RIGHTS   INCIDEXTAL  TO   POSSESSION  (Part  1 

entitled  to  the  rights  of  such,  without  regard  to  the  extent  of  his  land, 
or  from  whom  or  when  he  acquired  his  title.  The  fact  that  he  may 
have  procured  the  particular  tract  washed  by  the  stream  at  one  time, 
and  subsequently  purchased  land  adjoining  it,  will  not  make  him  any 
the  less  a  riparian  proprietor,  nor  should  it  alone  be  a  vahd  objection 
to  his  using  the  water  on  the  land  last  acquired.  The  only  thing  neces- 
sary to  entitle  him  to  the  right  of  a  riparian  proprietor  is  to  show  that 
the  body  of  land  owned  by  him  borders  upon  a  stream.     *     *     * 

The  case  of  Boehmer  v.  Irrigation  Dist.,  117  Cal.  19,  48  Pac.  908, 
would  seem  to  make  the  extent  of  riparian  rights  depend  upon  the 
source  of  title,  rather  than  the  fact  of  title ;  but  in  Water  Co.  v.  Han- 
cock, 85  Cal.  219,  24  Pac.  645,  20  Am.  St.  Rep.  217,  it  was  expressly 
held  that  all  land  bordering  upon  a  stream  which  is  held  by  the  same 
title — in  that  instance  consisting  of  1,280  acres— is  riparian,  and  no  dis- 
tinction was  made  on  account  of  the  source  of  title.  Again,  in  Wig- 
gins V.  Water  Co.,  supra  [113  Cal.  182,  45  Pac.  160,  32  L.  R.  A.  667], 
and  Bathgate  v.  Irvine,  126  Cal.  135,  58  Pac.  442,  77  Am.  St.  Rep. 
158,  the  right  of  a  riparian  proprietor  to  use  the  waters  of  a  stream 
for  irrigation  was  limited  to  the  water  shed.  But,  as  we  understand 
these  cases,  the  court  in  each  instance  was  determining  the  rights  of 
the  parties  then  before  it,  and  not  attempting  to  lay  down  an  inflexible 
rule  as  a  guide  in  all  cases.  Nothing  more  was  held  or  decided  than 
that  under  the  claim  alone  of  riparian  rights  the  owner  of  land  cannot, 
to  the  injury  of  another  riparian  proprietor,  take  the  water  beyond  the 
water  shed,  or  onto  lands  held  by  a  title  different  from  the  title  of 
those  through  which  the  stream  flows ;  and  this  all  will  concede.  The 
right  to  make  a  reasonable  use  of  the  water  of  a  stream  is  a  rigliFol 
property,  depending  on  the  ownership  of  the  land  abutting  on  or 
through  which  the  stream  flows ;  and  whether  a  given  use  is  reasona- 
ble or  not  is  a  question  of^fact,  to  be  determined  under  the  circum- 
stances of  eachjparticular..case.  The  right  to  use  the  water  belongs  to 
the  owner  of  the  land,  and  the  extent  of  its  exercise  is  not  to  be  de- 
termined by  the  area  or  contour  of  his  land,  but  by  its  eft'ect  upon  other 
riparian  proprietors.     *     *     * 

It  is  suggested  that  the  court  ought  to  ascertain  and  determine  the 
rights  of  the  respective  parties,  and  fix  them  in  the  decree,  so  that  here- 
after there  may  be  no  controversy  concerning  the  matter.  In  the  very 
nature  of  things,  however,  it  is  impossible  in  a  case  of  this  character 
to  make  such  a  decree.  The^rjghts  of  the  several  riparian  propiietQrs_ 
are  equal,  each  being^^ntitled  to  but  a  reasonable  use  oJ_.the  water  for 
^igating  purposes,  and  what  constitutes  such  use  must  necessarily  de- 
pend upon  the  season^  the  volume  of  water  in  the  stream,  the  area  and 
character  of  the  land  which  each  riparian  proprietor  proposes  to  irri- 
gate, and  many  other  circumstances ;  so  that  it  seems  to  us  there  is 
no  basis  upon  which  the  court  could  frame  any  other  decree  than  one 
enjoining  and  restraining  the  defendant  from  diverting  the  water  from 


Ch.  4)  STREAMS  73 

the  stream  to  the  Sjjbstantial  injury  of  the  present  or  future  rights  of 
the  plaintiffs,  and,  as  the  decree  of  the  court  below  is  to  that  effect,  it 
will  be  affirmed.^' 


Appeal  of  MESSINGER. 
(Supreme  Court  of  Pennsylvania,  1S85.    109  Pa.  285,  4  Atl.  162.) 

[Bill  for  an  injunction  to  restrain  defendants  from  using  the  water 
of  a  stream.    Bill  was  dismissed,  and  plaintiff  appeals.] 

Mercur,  C.  J.^*  This  is  an  attempt  to  enjoin  the  appellees  against 
the  use  of  the  water  of  a  small  stream  which  flows  through  their  land. 
It  unites  with  another  stream  of  about  the  same  size  in  forming  the 
larger  one,  on  which  the  appellants  own  lands  and  mills,  some  six  miles 
below  the  junction  of  the  two  smaller  streams.  The  complaint  is  that 
the  appellees  so  use  the  water  of  the  stream  on  their  lands  as  to  greatly 
lessen  the  flow  thereof  during  a  portion  of  the  year  to  the  mills  of  the 
appellants,  to  their  injury.  That  such  is  now  the  effect  of  the  appellees' 
use  of  the  water  in  a  dry  season,  when  the  streams  are  low,  is  undoubt- 
edly correct.     *     *     * 

What,  then,  are  the  controlling  facts  found  by  the  master  ?  They  are 
that  about  40  years  before  this  bill  was  filed  the  predecessors  in  title 
of  the  appellees  built  a  low  dam  across  the  stream,  and  cut  a  sluice  or 
ditch  therefrom  by  which  the  water  was  led  into  their  meadows  adjoin- 
ing. A  gate  was  put  at  the  entrance  of  the  ditch  by  which  the  quan- 
tity allowed  to  flow  could  be  checked  or  shut  off  when  desired.  This 
use  of  the  water,  under  a  claim  of  right,  had  continued  for  about  40 
years,  whenever  the  owners  of  the  meadows  thought  they  needed  wa- 
tering. It  did  not  flow  constantly  over  the  meadows,  as  there  were 
times  when  for  several  months  they  did  not  need  the  water ;  yet,  .dur- 
ing that  portion  of  each  and  every  year  when  the  growth  of  the  grass 
would  be  promoted  by  irrigation,  the  water  was  so  used.  Such  use  of 
the  water  was  continuous  and  uninterrupted  except  when  they  did  not 
want  it  and  closed  the  gates.  He  further  found  that  the  dam  is  no 
higher,  the  ditches  no  larger,  nor  the  quantity  of  water  diverted  any 
greater,  than  when  the  dam  was  originally  constructed.  On  the  con- 
trary, that  three  acres  less  of  meadow  land  are  now  irrigated  than  while 
it  was  in  possession  of  the  former  owners ;  that  a  number  of  ditches 
through  which  the  water  formerly  flowed  for  irrigating  purposes  are 
now  abandoned  and  closed ;  that  the  water  now  taken  from  the  creek 
is  less  than  was  formerly  taken,  but  it  has  not  decreased  proportionate- 
ly with  the  diminution  of  water  in  the  creek. 

At  the  time  the  water  was  first  diverted  from  the  stream,  and  for 
many  years  thereafter,  it  does  not  appear  to  have"  caused  any  injury  to 

13  In  addition  to  cases  cited  in  text,  see  Crawford  Co.   v.  Hathaway,  07 
Neb.  325,  353,  93  N.  W.  7S1,  60  L.  R.  A.  889,  108  Am.  St.  Rep.  647  (1903). 
1*  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


:^A 


74  ,  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part  1 

the  property  now  owned  by  the  complainants.  The  injury  results  from 
the  gradual  diminution  of  the  volume  of  water  flowing  in  the  stream, 
which  has  been  the  case  for  several  years.^°  While  the  dam  which  di- 
verts the  water  remains  no  higher,  and  the  ditches  which  led  the  wa- 
ter from  the  stream  and  returned  it  thereto  are  unchanged,  and  the  ap- 
pellees use  less  water  than  formerly,  yet  the  appellants  claim,  in  conse- 
quence of  the  diminished  flow  of  water  in  the  stream,  the  effect  of  the 
diversion,  at  first  harmless,  has  now  become  injurious,  and  therefore 
the  use  of  the  water  should  Be  enjoined  against.  In  support  of  this 
view,  the  general  rule,  as  declared  in  Washb.  Easem.  §  49,  is  invoked, 
that  the  time 'from  which  the  period  is  to  be  reckoned  in  computing 
the  duration  of  a  continuous  enjoyment  is  when  the  injury  or  inva^ 
sion  of  right  begins,  and  not  the  time  when  the  party  causing  it  began 
that  which  finally  creates  the  injury. 

The  correctness  of  this  rule  may  be  conceded,  yet  it  is  not_applicable, 
to  the  facts  of  the  present  case.  If  the  injury  here  was  caused  by  a 
change  of  the  dam  or  of  the  ditches ;  or  by  suffering  the  latter  to  be- 
come filled  up  or  clogged,  (Polly  v.  IMcCall,  37  Ala.  20;)  or  by  apply- 
ing the  water  to  a  different  use;  or  if  injury  was  caused  by  any  late 
act,  either  of  omission  or  of  commission,  on  the  part  of  the  appellees, — 
it  might  be  said  they  had  previously  only  begun  the  work  which  caus- 
ed the  injury ;  but  such  is  not  this  case.  Here  the  whole  action  and 
work  of  the  appellees  is  a  continuance  only  of  that  which  was  done  on 
the  ground  40  years  ago,  and  the  water  continues  to  be  used  for  the 
same  purpose  now  as  then.     *     *     * 

The  work  on  the  ground  was  not  only  under  a  claim  of  right',  but  it 
was  open,  visible,  and  notorious.  The  parties  who  owned  the  property 
below  could  foresee  and  anticipate  the  ultimate  effect  of  the  diversion 
of  the  water,  as  well  as  the  parties  who  caused  it.  The  fact  that  they 
may  not  have  foreseen  the  probable  diminution  of  the  quantity  of  wa- 
ter which  would  flow  in  the  stream  cannot  deprive  the  appellees  of 
any  of  their  rights  arising  from  their  possession  and  enjoyment  of  the 
water  for  nearly  twice  the  number  of  years  necessary  to  give  a  right 
thereto  by  prescription. 

Judgment  affirmed.^* 

15  The  stream  had  shrunk  to  one-half  its  former  size  and  it  was  alleged 
that  in  dry  seasons  the  defendants  took  practically  all  the  water. 

10  "The  plaintiff  settled  upon  his  laud  in  1886,  five  years  after  Coffey  be- 
gan his  ditch,  and  from  that  time  until  1S93  there  is  abundant  evidence  that 
lie  had  water  in  the  creek  at  all  times  except  for  a  day  or  two  in  1890.  No 
right  to  divert  and  dissipate  the  whole  stream  was  acquired  by  making  such 
use  thereof  as  would  still  leave  water  for  the  plaintiff'.  So  long  as  the  water 
was  suHicicnt  for  all,  there  was  no  adverse  user.  *  •  *  one  of  the  ele- 
ments to  be  considered  in  determining  what  is  a  reasonable  use  of  the  water 
of  a  stream  is  the  season  of  the  year,  and  its  eft'ect  upon  the  stream.  Ripar- 
ian owners  are  not  to  be  debarred  from  use  of  water  because  the  season  is 
dry  and  the  stream  low.  But  at  such  time  they  must  take  care  'to  do  no 
material  injury  to  the  common  right,  having  regard  to  the  then  stage  of  the 
river.'  *  *  *  The  testimony  is  that  the  season  of  1893  was  unusually  dry. 
Hence  what  might  have  been  a  reasonable  use  of  the  water,  or  at  least  such 


Ch.  4>  STREAMS  75 


NEW  YORK  RUBBER  CO.  v.  ROTHERY  et  al. 

(Court  of  Appeals  of  New  York,  1892.     132  N.  Y.  293,  30  N.  E.  841,  28  Am. 

St.   Rep.  575.) 

[The  appellant  was  a  lower,  the  respondents,  upper,  riparian  pro- 
prietors. The  respondents  had  a  valuable  mill  upon  their  land  and 
erected  a  dam  to  get  water  power  for  the  mill,  by  which  means  the 
normal  flow  of  the  river  was  diverted,  and  not  returned  to  the  chan- 
nel until  it  reached  a  point  below  the,  apjpellant's  land.  The  appellant's 
land  was  not  used  for  manufacturing  purposes.  The  appellant  brought 
an  action  at  law  for  the  diversion  of  the  water.  Judgment  below  for 
the  defendants.] 

IvANDON,  J.^''  *  *  *  The  court  charged  the  jury  that  if  the 
defendants  used  and  diverted  the  water  to  a  degree  that  materially  and 
appreciably  lessened  its  flow  along  the  lots  of  the  plaintiff  the  plain-' 
tiff  was  entitled  to  recover  nominal  damages.  But  the  court  also  charg- 
ed :  "These  defendants  have  the  right  to  use  this  water  to  run  their 
wheel,  provided  they  do  not  interfere  with  the  stream  to  an  extent  which 
you  can  say  is  both  appreciable  and  material.  That  question  will,  of 
course,  be  determined  with  reference  to  the  land  as  it  was,  and  not 
with  reference  to  the  future,  for  an  instant.  Be  sure  as  to  that.  Do 
not  change  the  question  from  just  what  it  is:  Have  the  Rotherys,  by 
this  water  course,  diverted  the  water  so  as  to  leave  the  stream,  to  a 
material  and  appreciable  extent,  insufficient  for  the  purposes  of  plain- 
tiffs_business  ?  Now,  gentlemen,  that  is  all  there  is  of  the  case."  The 
plaintiff  excepted  to  this  portion  of  the  charge,  and  requested  the  court 
to  charge  "that  the  plaintiff's  right  to  maintain  this  action,  and  to  re- 
cover a  verdict  for  nominal  damages,  does  not  depend  at  all  upon  the 
plaintiff's  showing  any  actual  or  any  perceptible  damage,  but  solely 
upon  the  question  whether  the  defendants  have,  by  the  use  of  their 

use  as  gave  tlie  plaintiff  no  ground  of  complaint,  in  other  years,  became  high-      -^  ■  '^ 
ly  unreasonable  when  it  had  the  effeict  of  giving  Coffey  and  Brewster  all  the        '^^2^1^ 
water,  and  leaving  none  for  other  owners.     Only  a  continuous  and  adverse.  '^ 

user  of  the  whole_stream  could  give  a  right  to  tal:e  oiat  a  greater  proportioii 

of  such  Tvafer  as  was  in  the  stream  at  the  time  than  they  had  habitually 
tak^In  fornipi'  years."  Meng  v.  CofTey,  67  Neb.  500,  520,  93  N.  W.  713,  720." 
SUT::Tr.  a.  OlO,  lOS  Am.  St.  Rep.  697  (1903).  For  the  facts  of  tliis  case 
see  ante,  p.  64. 

X.,  an  upper  riparian,  built  a  dam  and  excavated  for  a  reservoir.  .In  so 
doing  he  opened  two  or  three  springs  on  his  own  land  and  tapped  a  large- 
spring  ou  adjoining  land,  the  waters  of  which  he  piped  to  his  reservoir.,  in 
an  action  by  a  lower  riparian  for  interference  with  the  flowage  of  the 
stream,  A.  contended  that  as  a  consequence  of  these  new  sources  and  the 
further  facts  of  the  leakage  and  overflow  from  the  dam  and  the  occasion:!  t 
raising  by  him  of  the  sluice  gate,  as  much  water  ran  down  to  the  plaintitT's 
land  as  formerly.  Held,  if  the  defendant  had  interfered  with  the  natural 
water  flow,  these  faefs  constituted  no  defense-  Ware  v.  Allen,  140  Mass. 
5lS,  5  jS/.  E.  6f9"TlSSB)'.  Compare  ""Ell lot  v.  Fitchburg  R.  R.  Co.,  10  Cusn: 
(64  Mass.)  191,  57  Am.  Dec.  85  (18.52). 
17  The  statement  of  facts  Is  rewritten  and  part  of  the  opinion  is  omitted." 


76  RIGHTS   INCIDENTAL  TO  POSSESSION  (Part  1 

race,  at  any  season  of  the  year,  diverted  water  from  Matteawan  cfreek, 
and  thereby  have  reduced,  perceptibly  and  materially,  the  volume  or 
current  of  water  which  otlierwise  would  have  flowed  by  the  plaintiff's 
premises."    This  was  refused. 

Both  the  charge  and  refusal  were  erroneous.  The  plaintiff's  right  to 
recover  nominal  damages  was  substantial,  though  the  quantity  of  dam- 
ages was  not.  The  defendants  probably  did  leave  water  enough  in 
the  stream  for  the  purposes  of  the  plaintiff's  business,  as  that  business 
had  been  conducted.  But  the  plaintiff's  title  to  its  water  rights,  and  its 
7^-V  ^  right  to  redress  for  their  invasion,  were  not  conditional  upon  tlie  bene- 
^  ficial  user  of  them.     *     *     *     fj^g  plaintiff  may,  however,  lose  itstP 

tie  by  the  defendants'  prolonged  adverse  user  of  the  water  of  the 
stream,  and  this  is  the  more  probable  if  such  adverse  user  is  protected 
by  the  verdict  of  the  jury.  It  is  not  improbable  that  this  action  was 
brought  to  prevent  the  defendants  from  acquiring  a  prescriptive  right 
to  divert  the  water.  The  charge,  which  makes  "the  purposes  of  the 
plaintiff's  business"  material  to  its  right  to  recover,  and  cautions  the 
jury  to  regard  plaintiff's  land  "as  it  was,  and  not  with  reference  to 
^^,^X^  the  future,"  tended  to  lead  the  jury  to  disregard  the  inviolable  charac- 

^  ter  of  the  plaintiff's  property  rights,  or  at  least  expose  them  to  sacrifice, 

^ .  r ^x^d.'d't-^i  if  plaintiff's  actual  and  immediate  pecuniary  damages  were  inapprecia- 
/  ^  ble.  The  plaintiff  might  thus  lose  its  right  to  the  beneficial  use  of  the 
water  as  it  was  accustomed  to  flow  before  defendants  began  to  divert 
it  simply  because  it  had  not  as  yet  found  it  convenient  to  use  it.  In 
such  a  case,  nominal  damages  given  confirm  the  plaintiff's  right,  but 
withheld,  impeach  and  may  destroy  it.     *     *     * 

The  judgment  should  be  reversed,  new  trial  granted,  costs  to  abide 
event.    All  concur,  except  FollETT,  C.  J.,  not  voting.^^ 

18  The  plaintiff  was  a  riparian  proprietor  owning  a  water  mill  upon  a  small 
stream.  The  defendants  acquired  land  on  the  lake  whence  the  stream  flowed, 
and  installed  a  dam  for  the  purpose  of  obtaining  a  water  supply  for  certain 
villages,  thereby  changing  the  natural  flow  of  the  stream.  The  dam  was 
so  arranged,  however,  that  the  amount  of  water  for  the  plaintiff's  mill  was 
ontirely  sufficient  and  flowed  with  a  more  regular  volume  than  it  had  before 
the  installation  of  the  dam.  Held,  the  plaintiff  was  entitled  to  an  injunc- 
tion jpreventing  the  defendant  from  changing  the  natural  flow  of  Uie.  strearcu 
Robefts'v.  Gwyrfai  District  Comicil,  [18D9]  1  Ch.  583. 

A.  was  an  upper,  B.  a  lower,  riparian  proprietor.  A.  put  in  a  dam  that 
diverted  the  bulk  of  the  river  from  B.'s  side  of  the  stream  to  the  other.  B. 
alleged  that  the  effect  of  this  change  was  to  destroy  a  water  power  of  his 
land  and  asked  an  injunction  to  compel  the  restoration  of  the  natural  flow  of 
the  river.  The  court  found  that  in  fact  B.'s  land  had  no  water  power  pos- 
.sibilities.  Held,  B.  is  not  entitled  to  an  injunction.  Minnesota  Loan  & 
Trust  Co.  V.  St.  Anthony  Falls  Water-Power  Co.,  82  Minn.  505,  85  N.  W.  520 
(1901).  See  Modoc  Land  &  Live  Stock  Co.  v.  Booth,  102  Cal.  151,  36  Pac. 
431  (1894). 

A.  erected  a  dam  across  a  stream  through  his  land,  and  used  it  to  detain 
the  water  in  the  pond  which  formed  the  source  of  the  stream,  during  the 
autumn  and  spring  when  his  factory,  which  was  situated  on  other  laud  that 
he  owned  lower  down  the  stream  and  situated  below  that  of  B.,  was  ade- 
quately supplied  with  water  from  another  source.  When  that  failed,  the 
deficiency  was  made   up  from  the  reservoir  thus  created.    B.   opened   tl\e 


Ch.  4)  STREAMS  77 

FILBERT  V.  DECHERT. 

(Superior  Court  of  Pennsylvania,  1903.    22  Pa.  Super.  Ct.  362.) 

Porter,  J.^®  The  plaintiff  is  the_owner  in^ee  of  a  tract  of  land 
through  which  flows  Furnace  creek,  an  unnavigable  stream,  upon  which 
is  erected  a  gristmiU^  and  sawmill  operated  b;j^the  water  power.  The 
corporation  defendant  is  an  agent  of  the  state  to  which  has  been  commit- 
ted the  possession  and  management  of  the  property  used  as  an  asylum 
for  the  chronic  jnsaiie^L  the  title  to  the  property  being  in  the  common- 
wealth. Act  of  June  22,  1891,  P.  L.  379.  The  land  of  which  the  defend- 
ant, as  the  representative  of  the  commonwealth,  is  in  lawful  possession 
consists  of  a  tract  containing  540  acres,  through  which  for  a  distance 
of  about  a  mile  flows  Asylum  creek,  a  stream  which  falls  into  Furnace 
creek,  at  a  point  above  the  land  of  the  plaintiff.  The  state  has  erected 
upon  its  land  extensive  buildings,  suitable  as  a  place  of  residence  for 
the  insane,  and  has  for  a  number  of  years  there  maintained  the  unfor- 
tunate of  this  class  to  the  number  of  800,  the  nurses  and  officers  nec- 
essarily employed  about  the  buildings  increasing  the  total  population 
living  upon  the  land  to  about  900.  Asylum  creek  enters  the  property 
of  the  defendant  at  a  point  nearly  100  feet  higher  than  the  asylum 
buildings,  and  the  water  used  about  the  buildings  has  been  conveyed 
from  the  creek  through  a  six  inch  pipe.  The  plaintiff  brought  this  ac- 
tion alleging  a  deprivation  of  her  right  to  the  use  of  the  water  of  said 
stream]  The^only  injury  to  the  property  of  the  plaintiff  suggested  by 
theevidence  was  the  diminution  of  the  water  power. 

The  riparian  rights  of  the  commonwealth  are  the  same  which  would 
have  been  incidental  to  ownership  by  a  private  individual :  Union  Mill, 
etc.,  Co.  V.  Ferris,  2  Sawy.  176,  Fed.  Cas.  No.  14,371.  *  *  *  The 
learned  judge  of  the  court  below  charged  the  jury  that  the  use  of  the 
water  made  by  the  defendant  was  not  a  proper  ui£  of  the  stream  by  a 
riparian  owner;  and  that  "if  the  amount  of  water  taken  from  the 
channel  of  this  stream  sensibly  or  materially  diminished  the  flow,  then 
the  defendant  has  subjected  itself  to  an  action  for  an  excessive  use  or 
diversion  of  the  water."  "No  matter  what  the  necessities  of  the  asylum 
may  have  been,  no  matter  how  useful  the  institution  may  be,  how 
praiseworthy  it  may  be,  it  had  no  right  to  convey  the  water  out  of  its 
course  to  the  prejudice  of  the  plaintiff's  right."  This  language  has  the 
merit  of  being  free  from  ambiguity.  The  learned  judge  of  the  court 
below  determined  as  matter  of  law  that  the  defendant  had  no  right  to 
furnish  to  the  inmates  of  the  buildings  upon  the  riparian  land  water 
for  drinking,  culinary  and  cleansing  or  any  other  purpose  usually  con- 
sidered necessary  to  the  preservation  of  life  and  health. 

gates  and  let  off  the  accumulated  water.     Held,  A.  could  not  get  an  Injunc- 
tion against  B.,  although  there  was  no  showing  that  the  retention  of  the 
water  damaged  B.     Clinton  v.  Myers,  46  N.  Y.  511,  7  Am.  Rep.  373  (1871). 
19  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


78  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part  1 

This  conclusion  seems  to  have  been  reached  because  of  the  frequent 
recurrence  of  the  term  "ordinary  domestic  purposes"  in  the  authori- 
ties deahng  with  the  rights  of  riparian  owners.  The  learned  judge,  in 
his  opinion  refusing  a  new  trial,  says :  "The  principal  question  is 
whether  the  use  of  the  water  by  the  defendant  is  domestic  in  its  na- 
ture." He  then  refers  to  the  definitions  of  the  word  "domestic"  found 
in  several  dictionaries,  and  thus  states  the  result:  "The  central  idea 
of  both  these  definitions  seems  to  be  a  family,  home  interest,  something 
for  the  benefit  of  the  family  and  home."  Having  thus  reasoned  out 
that  there  must  be  a  home  and  a  family  upon  the  land  before  riparian 
rights  become  incidental  to  it,  the  learned  judge  proceeds  to  investigate 
the  character  of  the  residence  of  the  insane  patients  upon  the  property 
of  the  state.  Having  satisfied  himself  that  this  pubHc  institution  "is 
an  asylum,  not  a  home ;  a  house  of  detention ;  a  place  of  treatment  for 
the  chronic  insane,  a  hospital,"  the  process  of  excluding  these  dwellers 
upon  the  margin  of  the  stream  from  all  riparian  rights  is  complete. 
Even  if  the  spirit  of  a  legal  principle  and  the  relations  out  of  which  it 
arises  are  to  be  disregarded,  the  meaning  of  the  word  "domestic"  can- 
not be  arbitrarily  assumed  to  be  always  thus  narrow.  One  of  the  de- 
clared purposes  of  ordaining  the  constitution  of  the  United  States  was 
to  "insure  domestic  tranquility."  As  here  used  the  term  can  hardly 
be  said  to  imply  an  intention  to  preserve  the  peace  of  private  families : 
it  refers  rather  to  the  regulation  of  internal  public  affairs,  not  foreign 
interests.  The  term  ordinarily  means  pertaining- to  one's  place  of  resi- 
dence, or  to  the  affairs  which  concern  it,  or  used  in  the  conduct  of  such 
affairs.  The  authorities  do  not  leave  us  without  a  definition  of  the 
term.  In  Philadelphia  v.  Gilmartin,  supra  [71  Pa.  140],  Mr.  Justice 
Agnew  said,  in  referring  to  the  use  of  water  for  manufacturing  pur- 
poses :  "These  uses  are  not  domestic,  that  is,  such  as  are  for  the  pres- 
ervation of  the  life  and  health  of  the  population  and  their  creatures." 
Chief  Justice  Paxson  said,  in  Haupt's  Appeal,  supra  [125  Pa.  211,  17 
Atl.  436,  3  L.  R.  A.  536]  :  "If  there  was  a  tenant  thereon  he  could 
use  it  for  watering  his  stock  and  for  household  purposes,  for  any  use- 
ful, necessary  and  proper  purpose  incident  to  the  land  itself  and  es- 
sential to  its  enjoyment."    *    *     * 

The  word  as  used  in  the  authorities  cited  by  the  learned  judge  of 
the  court  below  refers  to  the  purposes  for  which  the  inhabitants  may 
use  the  water,  and  not  to  the  social  status  of  the  individuals  occupying 
the  buildings  which  may  be  upon  the  land.  The  right  is  a  natural  one, 
recognized  as  growing  out  of  the  natural  wants  of  man ;  it  is  inherent 
in  the  ownership  of  the  land,  and  is  to  be  enjoyed  by  all  who  lawfully 
dwell  upon  the  premises  to  the  ownership  of  which  it  is  an  incident, 
without  regard  to  the  duration  or  purpose  of  such  residence.  All 
those  who  lawfully  occupy  the-  riparian  lands  have  a  right  to  the  ordi- 
nary use  of  the  water  for  the  purpose  of  supplying  their  natural  wants, 
including  drinking,  washing,  cooking,  and  about  their  habitations  for 
such  things  as  are  necessary  to  the  preservation  of  life  and  health. 


Ch.  4)  STREAMS  79 

This  natural  right  is  not  dependent  upon  whether  the  dwellers  by  the 
stream  occupy  homes  or  hospitals,  are  sheltered  by  tents  or  live  in  the 
open.  The  state  might  lawfully  ordain  that  the  National  Guard  should 
encamp  upon  this  tract  of  land  and  take  water  for  their  use  while 
there,  from  this  stream.  The  ordinary  use  of  the  water,  for  the  pur- 
pose of  supplying  the  natural  wants  of  those  who  inhabit  the  riparian 
lands,  may  involve  an  exhaustion  of  the  stream  without  incurring  lia- 
bility to  lower  riparian  proprietors :  Attorney  General  v.  Gt.  Eastern 
Ry.  Co.,  23  L.  T.  N.  S.  344.  When  the  use  is  extraordinary,  for  the 
supply  of  artificial  wants,  such  as  manufactures,  those  whose  supply 
of  water  is  thereby  sensibly  diminished,  have  a  right  of  action :  Gould 
on  Waters  (3d  Ed^  §  205 ;  Black's  Pomeroy  on  Water  Rights,  §§  138, 
140,  and  cases  there  cited. 

This  agent  of  the  state,  the  defendant,  had  an  unquestionable  right 
to  take  from  the  stream  so  much  water  as  was  reasonably  necessary 
to  supply  the  natural  wants  of  those  living  upon  this  tract  of  land. 
The  evidence  does  not  indicate  any  necessity  for  the  use  of  the  water  to 
operate  a  fountain.  The  defendant  was  not  warranted  in  taking  water 
for  the  manufacture  of  ice  to  be  sold  away  from  the  premises.  The 
first  and  second  specifications  of  error  are  sustained.    *    *    * 

The  judginent  is  reversed  and  a  venire  facias  de  novo  awarded.-" 

CITY  OF  CANTONv.  SCHOCK. 

(Supreme  Court  of  Ohio.  1902.     66  Ohio  St.  19.  63  N.  E.  600,  58  L.  R.  A. 
637,  90  Am.  St.  Rep.  557.) 

The  city  of  Canton  is  a  municipal  corporation,  and  is  situated  be- 
tween the  east  and  west  forks  of  Nimishiller  creek ;  the  forks  meet- 
ing at  or  near  the  south  line  of  the  city,  and  thus  forming  that  creek. 
The  entire  natural  drainage  of  the  city  is  toward  and  -into  these  two 
forks  of  the  creek,  which  is  a  natural  water  course.  The  city  has  es- 
tablished its  system  of  waterworks  on  the  west  branch  of  the  creek,  on 
a  lot  of  land  adjoining  said  branch ;  and  it  takes  its  water  supply  from 
said  creek,  and  from  certain  wells  near  the  same,  and  from  INIyers' 
Lake,  near  by.  The  city  uses  so  m.uch  of  the  water  supply  thus  pass- 
ing through  its  waterworks  as  it  needs  for  its  use  as  a  city,  and  supplies 
its  inhabitants  with  water  for  domestic,  commercial,  and  manufactur- 
ing purposes,  at  a  price  fixed  by  the  city,  so  as  to  produce  an  income 
about  sufficient  to  pay  the  expenses  of  said  waterworks.  The  defend- 
ants in  error  own  a  water-power  gristmill,  located  on  the  creek,  a  short 
distance  downstream,  south  of  the  city,  and  have  used  the  water  of  the 
creek  for  many  years — over  50 — as  power  to  run  their  mill,  and  until 
about  the  year  1887  there  was  sufficient  water  to  supply  both  tlie  city 

2  0  See  Wadsworth  v.  Tillotson,  15  Conn.  366,  39  Am.  Dec.  391  (1843) ; 
Evans  v.  Merriweather,  3  Scam.  (4  111.)  492,  38  Am.  Dec.  106  (1842^. 


80  RIGHTS   INCIDENTAL  TO  POSSESSION  (Part  1 

and  the  mill ;  but  as  the  city  grew,  and  extended  its  waterworks,  it 
used  larger  quantities  of  water,  and  thereby  the  supply  to  the  mill  be- 
eame  reduced  to  such  an  extent  that  in  dry  seasons  of  the  year  there 
was  not  sufficient  water  to  run  the  mill  all  the  time,  and  it  became  nec- 
essary to  shut  down  at  nights.  Thereupon,  in  the  year  1898,  the  de- 
fendants in  error  (plaintiffs  below)  commenced  an  action  against  the 
city  in  the  court  of  common  pleas,  seeking  to  recover  damages  from 
the  city  for  thus  using  the  water,  and  thereby  diminishing  the  supply 
to  the  mill. 

The  city  saved  exceptions  to  part  of  the  charge,  and  to  the  charge 
as  a  whole.  A  verdict  was  returned  in  favor  of  plaintiffs  below,  mo- 
tion for  new  trial  overruled,  judgment  entered  on  the  verdict  against 
the  city,  and  a  bill  of  exceptions  allowed,  signed,  and  made  part  of  the 
record.  The  circuit  court  affirmed  the  judgment,  and  thereupon  the 
city  filed  its  petition  in  error  here,  seeking  to  reverse  the  judgments 
below. 

BuRKET,  J.^^  As  this  is  an  action  against  the  city  for  damages,  no 
question  as  to  eminent  domain,  or  appropriation  of  private  property  for 
public  uses,  is  involved  in  the  issue;  the  controlling  issue  being  as  to 
whether  the  city,  as  a  municipal  corporation,  is  a  riparian  proprietor 
having  the  right  to  use  the  waters  of  the  creek  for  its  own  purposes,  and 
to  supply  them  to  its  inhabitants  for  the  ordinary  purposes  of  life,  and 
as  to  whether  the  right  to  use  water  from  a  stream  by  one  riparian 
proprietor  for  manufacturing  purposes,  such  as  running  a  gristmill,  is 
inferior  or  equal  to  the  right  to  use  the  water  from  the  same  stream 
by  an  upper  proprietor  for  domestic  purposes. 

It  is  urged  by  counsel  for  defendants  in  error  that  a  municipality 
situated  on  a  natural  water  course  is  not,  in  its  corporate  capacity,  a 
riparian  proprietor,  and  that  only  those  inhabitants  whose  lots  or  lands 
border  on  the  stream  are  such  proprietors ;  and  some  cases  are  cited 
which  seem  to. take  that  view  of  the  law.    *    *    * 

It  was  held  by  this  court  at  this  term  in  City  of  Mansfield  v.  Balliett, 
65  Ohio  St.  451,  63  N.  E.  86,  58  L.  R.  A.  628,  that  a  city  situate  on  a 
stream  is' liable  in  its  corporate  capacity  to  a  lower  proprietor  for  pol- 
luting the  water  of  such  stream  by  running  the  sewage  of  such  city  and 
its  inhabitants  into  such  stream.  This  case  holds  the  city,  in  its  corpo- 
rate capacity,  and  as  an  upper  proprietor,  liable  to  a  lower  proprietor 
for  polluting  the  water  of  the  stream;  and  if  the  city  is  liable  not  only 
for  its  own  acts,  but  also  for  the  acts  of  its  inhabitants,  in  flowing  sew- 
age into  the  stream,  it  must  be  upon  the  principle  that,  as  upper  ripariafi 
*  proprietor,  it  has  violated  its  duty  toward  a  lower  riparian  proprietor 
on  the  same  stream,  and  that  therefore  the  city,  in  its  corporate  ca- 
pacity, is  a  riparian  proprietor  on  the  stream,  and  must  bear  the  bur- 
dens of  such  position.  While  the  inhabitants  own  their  lots  individual- 
ly, tlie  city  owns  the  streets,  the  fire  department,  and  all  other  public 

21  Tart  of  the  opinion  is  omitted. 


Ch.  4)  STREAMS  81 

property  and  public  works,  and,  in  its  corporate  capacity,  provides  for 
the  convenience  and  welfare  of  its  inhabitants  as  to  streets,  fire  pro- 
tection, lighting,  and  supplying  water ;  and  in  such  and  other  like  mat- 
ters the  city  overshadows  the  individuals,  and  stands  in  its  corporate 
capacity  as  a  single  proprietor  extending  throughout  its  entire  limits, 
and  entitled,  as  such,  to  all  the  rights,  and  subject  to  all  the  liabilities, 
of  a  riparian  proprietor  on  the  stream  upon  which  it  is  situated.  Sound 
reason,  the  weight  of  authority,  and  the  present  advanced  state  of  mu- 
nicipal government,  rights,  and  liabilities,  require  that  a  municipality 
should  be  held  and  regarded,  in  its  entirety,  as  an  individual  entity,  hav- 
ing in  its  corporate  capacity  the  rights,  and  subject  to  the  liabilities, 
of  a  riparian  proprietor;  and  we  so  hold  in  this  case. 

The  bringing  of  the  action  against  the  city  for  damages  is  of  itself  ^.  ,. 
an  implied  admission  that  the  city,  in  its  corporate  capacity,  is  an  up-  -'*^^-^  ' 
per  proprietor,  liable  for  the  wrongful  diversion  or  use  of  the  water  .    •y;.^ 

of  the  stream  upon  which  it  is  situated.    Being  charged  with  the  liabil-  \Ja 

ity  of  such  upper  proprietor,  as  conceded  by  bringing  the  action,  and     -f^-^^-^y"^^"^ 
as  was  rightly  held  in  the  City  of  Mansfield  Case,  it  must  also  be  ac- 
corded  the  rights  and  benefits  of  such  proprietor. 

As  such  proprietor,  the  city  uses  the  water  of  the  stream,  through  its 
waterworks,  in  extinguishing  fires,  sprinkling  streets,  and  other  public 
purposes,  and  supplies  water  to  its  inhabitants  for  domestic  use  and 
manufacturing  purposes.    *     *    * 

As  the  right  of  the  city  to  supply  water  to  manufactories  within  its  ' 

bounds  for  power  purposes  is  only  equal  to  the  right  of  a  lower  pro- 
prietor to  use  water  for  the  same  purpose,  the  question  arises  in  this 
case  as  to  the  rights  of  the  parties  to  use  the  water  of  the  stream  for 
such  purposes.  *  *  *  Where  there  is  not  sufficient  water  in  a  stream 
to  supply  fully  the  needs  of  all  the  proprietors  on  the  stream  for  power 
purposes,  no  one  has  the  right  to  use  all  the  water,  and  thereby  deprive 
those  below  him  from  the  use  of  any ;  nor  can  those  below  rightly  in- 
sist that  those  above  shall  use  no  water  for  power,  and  thereby  save  it 
all  for  those  below.  .  Each^  should  use  the  water  reasonably,  and  so  as 
to  do  as  little  injury  to  the  others  as  circumstances  will  permit.  As  a 
loss  must  fall  upon  one  or  the  other  of  such  proprietors,  neither  should 
be  compelled  to  bear  the  whole  loss,  but  the  water  should  be  so  divided 
and  used  that  each  one  may  bear  his  reasonable  proportion  of  the 
loss.    *    *    *  '        ■ 

This  being  so,  the  city  of  Canton,  in  supplying  water  to  its  inhabit- 
ants for  power  purposes,  had  the  right  to  use  the  water  of  the  stream 
^  a  reasonable  extent  only,  and  so  as  to  do  as  little  injury  as  might  be, 
under  all  the  circumstances,  to  the  lower  proprietor ;  each  party  bear- 
ing an  equitable  share  of  the  loss  caused  by  the  shortage  of  water.  Dry 
seasons  are  not  caused  by  either  party,  but  are  the  act  of  God,  and  each 
party  must  bear  the  losses  resulting  to  him  therefrom.     *     *     * 

All  water  powers  on  a  stream  are  established  subject  to  the  superior 
BiG.RionTs — 6 


1t' 


82  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part  1 

right  of  all  upper  proprietors  to  use  water  out  of  the  stream  for  domes- 
ti^purposes,  and,  if  the  upper  proprietors  have  grown  so  large  or  be^ 
come  so  numerous  as  to  consume  most  or  all  of  the  water,  the  lower 
proprietors  have  no  cause  of  complaint,  because  it  is  only  what  they 
should  have  reasonably  expected  in  the  growth  and  development  of  the 
country,  and  subject  to  which  contingency  they  established  their  water 
powers. 

In  addition  to  taking  water  from  the  stream  for  its  own  uses,  and 
supplying  the  same  to  its  inhabitants  for  domestic  and  manufacturing 
purposes,  the  amended  petition  avers  that  the  city  supplied  water  to'  its 
inhabitants  for  commercial  purposes.  If  this  means  only  that  the  city 
received  pay  for  the  water  so  supplied,  and  thereby  made  the  water  an 
article  of  commerce,  the  averment  is  of  no  force.  The  city  having  the 
right  to  supply  water  to  its  inhabitants  for  domestic  and  manufacturing 
purposes,  it  can  make  no  difference  in  that  right  that  the  supply  is  for 
pay,  rather  than  for  nothing.  The  injury,  if  any,  to  the  lower  proprie- 
tor, arises  from  the  taking  of  the  water,  and  not  from  the  pay  received 
therefor. 

It  is  also  averred  in  the  amended  petition  that  the  city  supplies  wa- 
ter to  people  outside  of  the  city  for  domestic,  commercial,  and  man- 
ufacturing purposes.  If  such  supply  to  outsiders,  or  to  be  transported 
away  from  the  city  for  commercial  purposes,  is  sufficient  in  quantity 
to  materially  injure  defendants  in  error,  taking  into  consideration  the 
size  of  the  stream  and  water  supply,  the  city,  to  that  extent,  is  exceed- 
ing its  right  as  a  riparian  proprietor.    *    *    * 

The  city  having  no  right  to  materially  diminish  the  flow  of  the  water 
in  the  stream  to  the  injury  of  defendants  in  error  by  supplying  water 
to  outsiders,  or  for  commercial  purposes  to  be  transported  to  other 
parts,  or  to  supply  to  its  inhabitants  for  power  purposes  an  unreasona- 
ble quantity,  as  above  pointed  out,  it  follows  that  if  the  city  has  ma- 
terially diminished  the  flow  of  the  water  in  the  stream  by  so  supplying 
water  to  outsiders  or  for  transportation,  or  unreasonably  for  purposes 
of  power,  it  is  liable  to  respond  in  damages  to  the  party  injured  there- 
by; but  for  the  water  consumed  by  the  city  for  its  own  purposes,  or 
so  supplied  to  its  inhabitants  for  domestic  use,  even  though  it  received 
pay  therefor,  it  is  not  liable. 

The  water  taken  by  the  city  from  the  stream  for  its  own  use,  and 
so  supplied  to  its  inhabitants,  is_taken  by  virtue  of  its  rights  as  a  ripari- 
an proprietor^  and  not  by  virtue  of  the  right  of  eminent  domain,  and 
therefore  no  compensation  need  be  made  therefor.     *     *     * 

The  circuit  court  erred  in  affirming  the  judgment  of  the  common 
pleas.  Both  judgments  will  be  reversed,  and  the  cause  remanded  for 
further  proceedings. 

Judgments  reversed.^^ 

2  2  Compare  Barre  Water  Co.  v.  Carnes,  65  Vt.  G26,  27  Atl.  609,  21  U  K.  A. 
769,  36  Am.  St.  Kep.  891    (1893). 
-y  An  incorporated  city  purcliased  a  piece  of  land  on   a   river  and  sunk  a 


Ch.  4)  STREAMS  83 


HAYES  V.  WALDRON. 
(Supreme  Court  of  New  Hampshire,  1863.    44  N,  H.  580,  84  Am.  Dec.  105.) 

Case  by  Simon  F.  Hayes  against  Jeremiah  W.  Waldron,  for  dis- 
charging  saw-dust  and  shavings  from  the  defendant's  mill  into  the 
Cochecho  dver,  which  ran  through  the  plaintiff's  meadows  below  the 
mill,  and  was  accustomed  to  overflow  them  in  times  of  high  water, 
whereby  the  saw-dust  and  shavings,  in  times  of  high  water,  were  car- 
ried and  deposited  on  these  meadows.  The  defendant's  saw-mill,  situ- 
ate on  his  land  on  the  river,  was  a  belt  mill,  driven  by  water,  and  prior 
to  1847  the  saw-dust  had  been  carried  by  a  belt  and  box  into  the  wheel 
pit,  whence  it  passed  off  through  the  tail  race  into  the  river.  About  1857 
the  belt  and  box  were  changed  so  as  to  carry  the  saw-dust  directly  into 
the  river  opposite  and  back  of  the  mill,  which  is  some  twenty  feet  from 
the  river.  At  tlie  river  bank  there  is  a  bank  wall  some  six  feet  high 
from  the  water,  and  the  belt  and  box  are  some  twelve  or  fifteen  feet 
above  the  water,  and  extend  just  beyond  the  wall,  so  as  to  drop  the 
saw-dust  into  the  bed  of  the  river.  About  1852  the  defendant  put  in 
a  planing  machine,  and  the  shavings  from  it  were  carried  away  and 
bufnt  till  July  4,  1858,  when  the  defendant  put  in  a  belt  and  box  simi- 
lar to  the  other,  and  discharged  the  shavings  into  the  river  some  twelve 
or  fifteen  feet  below  where  the  saw-dust  was  discharged.  If  there  had 
been  no  belts  and  boxes  to  carry  off  tlie  saw-dust  and  shavings,  they 
would  have  fallen  into  a  room  under  the  mill,  and  not  into  the  water. 
In  the  winter  the  saw-dust  and  shavings  accumulated  where  they  fell 
into  the  river,  and  were  from  time  to  time  shoveled  into  the  river  di- 
rectly, or  through  holes  cut  in  the  ice,  'if  frozen.  The  testimony  was 
somewhat  conflicting  as  to  the  extent  of  the  accumulations  and  the 
frequency  of  the  removals.  As  bearing  on  the  question  whether  such 
discharge  of  saw-dust  and  shavings  into  the  river  was  a  reasonable  use 
of  the  stream  by  the  defendant,  he  oft'ered  to  show  a  uniform,  long 
continued,  uninterrupted  and  undisputed  usage  for  water  saw-mills, 
planing  machines  and  shingle  and  clapboard  machines  to  discharge  their 

large  well  within  100  feet  of  the  stream  in  sandy  soil.  It  does  not  clearly 
appear  whether  this  land  was  within  the  city  limits.  This  well  drew  its 
water  from  the  river  in  such  quantities  as  to  interfere  seriously  with  the 
mill  of  a  lower  riparian.  The  water  was  used  by  the  city  for  municipal 
purposes  and  for  supplying  its  inhabitants  for  domestic  and  manufacturing 
purposes.  Held,  the  lower  riparian  may  enjoin  the  withdrawal  of  the  wa- 
ter. The  court.  Brewer,  J.,  said:  "A  city  cannot^  be  considered  a  riparian 
proprietor  within  the  scope  of  the  exf'opfion"ha'mod  las  'fo' user'for  domestic 
purposesj." '"*  *  *  The  city,  as  a  corporation,  may  own  land  on  the  banks, 
and  TSus~in  one  sense,  be  a  riparian  owner.  But  this  does  not  nialie  each 
citizen  a  riparian  owner.  And  the  corporation  is  not  taking  the  water  for 
its  own  domestic  purposes;  it  is  not  an  individual ;  it  has  no  natural  wants; 
it  is  not  taking  for  its  o\^ti  use  but  to  supply  a  multitude  of  individuals;  it 
takes  to  sell."  Citv  of  Emporia  v.  Soden,  25  Kan.  588,  606,  67  Am.  Kep.  '-'65 
(1881). 

See  Swinden  W.  W.  Co.  v.  Wilts,  etc..  Canal  Co.,  L.  R.  7  English  &  Irish 
Appeals,  GOT  (1S73) ;  Stein  v.  Burden,  24  Ala.  i:jO,  CO  Am.  iJec.  453  (1S54). 


84  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part  1 

saw-dust,  chips  and  shavings  into  the  stream;    to  which  the  plaintiff 
objected,  but  the  court  overruled  the  objection. 

Then  a  considerable  number  of  witnesses,  acquainted  with  saw-mills, 
some  with  many,  others  with  few,  in  that  vicinity,  and  also  in  other 
parts  of  the  State,  testified  that  in  all  the  water  saw-mills  they  ever 
knew  the  saw-dust  was  discharged  into  the  streams.     *     *     * 

[The  jury  returned  a  verdict  for  the  defendant.  The  plaintiff  mov- 
ed to  set  it  aside.] 

Bellows,  J.-^  The  charge  was  in  substance  that  the  defendant, 
Jbeing  a  riparian  proprietor,  was  entitled  to  a  reasonable  use  of  the 
stream  for  manufacturing  purposes;  and  whether  it  was  a  reasonable 
use  to  throw  into  the  stream  the  saw-dust  resulting  from  the  process 
of  manufactul"e,  was  a  question  of  fact  for  the  jury;  and  in  determin-" 
ing  that  question  tlie  jury  were  required  to  keep  in  view  that  the  plain- 
tiff had  a  similar  right  to  the  reasonable  use  of  the  stream,  which  the 
defendant  could  not  lawfully  infringe;  and  they  were  further  instruct- 
ed that,  in  deciding  whether  the  use  by  the  defendant  was  reasonable, 
they  were  to  take  into  consideration  all  the  circumstances  of  the  case, 
including  the  size  and  character  of  the  stream,  the  nature  and  im- 
portance of  the  use  claimed  and  exercised  by  the  defendant,  together 
with  the  inconvenience  or  injury  to  the  plaintiff. 

To  these  instructions  we  think  there  can  be  no  objection;  on  the 
contrary,  they  are  sustained  by  the  general  current  of  authority  upon 
that  subject. 

But  the  plaintiff  urges  that,  in  accordance  with  his  request,  the  court 
should  have  charged  the  jury  that  the  defendant  had^no  right  to  con- 
duct his  saw-dust  and  shavings  into  the  river,  if  they  did  any  injury 
to  the  plaintiff's  lands  below,  and  also,  that  he  had  no  right  to  dis- 
charge them  into  the  river,  unless  such  discharge  was  necessary  to  the 
running  of  his  mill ;  and  it  appears  that  the  court  declined  to  charge 
the  jury  in  these  terms,  but  did  instruct  them  that  each  proprietor  might 
use  and  apply  the  water,  as  it  runs  over  his  land,  to  domestic,  agri- 
cultural, or  manufacturing  purposes,  provided  he  uses  it  in  a  reasona- 
ble manner,  and  so  as  to  work  no  actual  or  material  injury  to  the  oth- 
ers; and  by  actual  or  material  injury  is  meant  infringement  of  the 
right  of  others;  and  again,  that  the  test  is,  not  whether  it  produces 
some  inconvenience  or  detriment  to  him,  but  whether  it  impairs  the  full_ 
and  reasonable  enjoyment  of  the  stream  that  he  is  entitled  to  equally 
with  the  proprietor  above. 

Of  these  instructions  we  think  the  plaintiff  has  no  cause  to  complain ; 
nor  do  we  perceive  any  error  in  declining  to  give  the  instructions  pray- 
ed for,  in  the  terms  suggested.     *     *     * 

As  it  is  in  respect  to  the  abstraction,  detention,  and  diversion  of  the 
water,  so  it  is  and  must  be  in  respect  to  the  deposit  of  waste,  or  other 

28  Part  of  the  opiuiou  is  omitted. 


Ch.  4)  STREAMS  85 

substances  in  the  stream,  as  incidental  to  its  use  in  the  various  modes  be- 
fore described.  In  many  or  most  of  these  modes  of  use  such  deposits 
are  to  some  extent  necessarily  made.  In  the  construction  and  repair  of 
mills  and  dams,  in  the  excavations  required  for  their  foundations,  and 
in  the  frequent  removal  of  the  gravel  used  for  tightening  such  dams, 

.  the  water  must  for  a  time,  and  necessarily,  be  rendered  so  impure  as 
to  cause  inconvenience  occasionally  to  persons  engaged  in  a  kind  of 
manufacture  requiring  pure  water.  But  if  such  building  and  repairs 
are  reasonably  conducted,  the  inconvenience  must  be  borne  just  the 
same,  and  for  the  same  reasons,  as  the  inconvenience  caused  by  the 
temporary  and  reasonable  detention  of  tlie  water  while  filling  the  dam. 
So  in  the  use  of  a  stream  for  purposes  of  agriculture,  such  as  wash- 
ing sheep,  crossing  it  with  teams,  allowing  cattle  and  swine  to  traverse 
it, — the  same  principles  will  apply.  So  in  the  use  of  many  kinds  of 
mills,  such  as  saw-mills,  fulling-mills,  cotton  and  woolen  factories, — 
there  must  be  thrown  into  the  stream  more  or  less  of  the  waste,  such 
as  saw-dust,  soap-lees,  and  other  impurities,  and  no  ordinary  care  or 
prudence  could  prevent  it.  In  the  other  cases  such  disposition  of  the 
whole  waste,  although  not  absolutely  indispensable,  would  add  greatly 
to  the  productive  value  of  the  mill  power. 

Whether,  in  either  case,  it  may  be  rightfully  done  must  depend  upon 
the  question  whether,  under  all  the  circumstances  of  the  case,  it  is  or 
is  not  a  reasonable  use  of  the  stream ;  and  in  determining  that  ques- 
tion the  extent  of  the  benefit  to  the  mill  owner,  and  of  inconvenience 
or  injury  to  others,  may,  as  stated  in  the  charge,  very  properly  be  con- 
sidered. So  in  respect  to  the  size  and  character  of  the  stream,  it  be- 
ing obvious  that  an  amount  of  diminution  or  pollution  which  would  be 
insignificant  in  a  large  stream,  might,  in  a  small  one,  be  wholly  de- 
structive of  the  common  right.  So  also,  in  determining  the  reasona- 
bleness of  suffering  the  manufacturer's  waste  to  pass  off  in  the  current, 
much  must  depend  upon  the  use  to  which  the  stream  below  can  be  or 
is  apphed ;  whether  as  a  mere  highway  alone,  or  for  purposes  of  man- 
ufacture, requiring  pure  water,  or  for  tlie  supply  of  an  aqueduct  to  a 

■  large  city,  as  in  the  case  of  the  Croton  river;  and  in  respect  to  the 
lands  below  adjacent  to  the  river,  the  character  of  the  banks,  whether 
they  are  usually  overflowed  or  not  in  high  water,  should  be  consid- 
ered.    *     *     * 

But  it  is  urged  that  the  court  should  have  charged  the  jury,  as  re- 
quested by  the  plaintiff,  that  the  defendant  "had  no  right  to  discharge 
his  saw-dust  and  shavings  into  the  river,  unless  such  discharge  was 
necessary  to  the  running  of  his  mills."  The  question,  however,  was  not 
whether  the  acts  complained  of  were  necessary  to  the  enjoyment  of 
the  defendant's  right,  in  the  sense  that  without  them  it  could  not  be  en- 
joyed at  all,  but  whether  such  acts  were  done  in  the  reasonable  use  of 
the  stream;  and  of  course  in  deciding  that  question  tlie  jury  should 
consider  the  necessity  or  importance  of  the  right  claimed  so  to  discharge 


86  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part  1 

• 

the  waste,  as  well  as  the  extent  of  the  injury  likely  to  be  caused  to  the 
plaintiff.  2* 

The  plaintiff's  counsel  regards  this  discharge  of  the  waste  as  an  act 
by  itself,  distinct  from  the  use  of  the  mill,  and  likens  it  to  the  case  of 
depositing  the  waste  directly  upon  the  plaintiff's  land  by  means  of 
teams  or  machinery  provided  for  that  purpose.  To  this  view  we  are 
unable  to  assent,  because  the  discharge  of  the  waste  into  the  stream", 
so  far  as  it  is  reasonable,  must  be  regarded  as  an  incident  of  the  right 
to  use  the  stream  for  the  manufacture  which  produces  such  waste,  oth- 
erwise the  act,  if  calculated  to  injure  the  proprietors  below,  could  not 
be  justified.  In  this  respect  it  stands  upon  the  same  ground  as  the 
retardation  or  acceleration  of  the  current  in  the  proper  and  reasonable 
use  of  the  mills. 

Upon  this  point  the  court  charged  the  jury  to  consider  how  far  the 
use,  if  important,  could  be  of  practical  value  without  the  right  claim- 
ed, and  also  the  extent  of  the  detriment,  inconvenience,  or  injury  to  the 
owner  below ;  and  this  we  think  goes  as  far  as  the  plaintiff  could  right- 
fully ask. 

The  remaining  question  touches  the  admission  of  evidence  of  usage, 
as  bearing  upon  the  reasonableness  of  discharging  the  saw-dust  and 
shavings  into  the  stream.  There  are  cases  where  the  customs  and 
usages  of  trade  may  be  proved  to  aid  in  the  construction  of  contracts, 
and  in  defining  the  obligations  arising  out  of  such  trade.  1  Greenl.  Ev., 
sec.  292 ;  2  Stark.  Ev.  453,  456,  and  notes ;  Dunham  v.  Day,  13  Johns. 
(N.  Y.)  40;  Cutter  v.  Powell,  6  T.  R.  320;  Noble  v.  Kenoway,  Doug. 
510;  Dolby  v.  Hiest,  1  B.  &  B.  224;  Renner  v.  Bank  of  Columbia,  9 
Wheat.  581,  6  L.  Ed.  166. 


2  4  "Defendant  shows  that  his  mill  is  so  constructed  that  the  sawdust  and 
refuse  cannot  be  otherwise  disposed  of,  except  by  permitting  it  to  fall  into 
the  stream,  without  practically  destroying  its  value  as  a  water-power  mill ; 
that  owing  to  the  construction  of  buildings  adjacent  to  said  mill,  and  the 
formation  of  the  land  thereabout,  there  is  no  other  available  method  of 
disposing  of  this  refuse  without  rendering  the  mill,  as  it  now  stands  and  is 
constructed,  useless  as  such.  Now,  if  he  had  gone  one  step  further  and 
shown  that  this  was  a  proper  way  in  which  to  locate  and  construct  a  saw- 
mill, and  that  there  was  no  other  feasible  and  practical  method  of  doing  it, 
we  would  probably  not  have  felt  warranted  in  disturbing  the  decision  of  the 
trial  court :  at  least,  if  it  appeared  that  this  stream  was  adapted  to  and  use- 
ful for  such  saw-mill  purposes.  But  we  look  in  vain  either  in  the  evidence 
or  special  findings  of  the  court  for  anything  tending  to  show  that  this 
mill  was  properly  located  or  constructed,  or  that  there  was  any  necessity 
for  locating  or  constructing  it  as  it  now  is.  In  the  location  and  construc- 
tion of  his  mill  defendant  was  bound  to  anticipate  and  have  regard  for  any 
reasonable  use  to  which  others  might  or  could  put  the  stream.  For  anything 
that  appears  in  the  evidence  this  mill  could  have  been  so  constructed  as  to 
render  the  casting  of  this  refuse  into  the  water  wholly  unnecessary.  The 
necessity  for  doing  so  now  may  be  Avholly  the  result  of  defendant's  own 
wrong  or  negligence  in  constructing  this  mill  in  the  manner  or  place  he 
did.  If  so,  it  will  not  avail  him  to  show  that  he  cannot  use  the  mill  as  now 
located  and  constructed  in  any  other  way."  Red  River  Roller  Mills  v.  Wright, 
30  Minn.  249,  254,  15  N.  W.  1(J7,  lliO,  44  Am.  Rep.  l'J4  (1883). 


Ch.  4)  STREAMS  ~  87 

But  whether  such  customs  and  usnges  may  or  may  not  be  proved  to 
bear  upon  the  question  of  reasonableness  in  a  case  not  growing  out  of 
any  contract,  upon  which  we  give  no  opinion,  we  are  satisfied  that  the 
court  erred  in  admitting  the  proof  of  usage  in  the  case  before  us ; 
upon  the  ground  that  the  jury  may  be  presumed  to  be  already  suffi- 
ciently informed  as  to  what  is  a  reasonable  use  of  a  water-course,  as 
they  are  supposed  to  be  as  to  what  shall  constitute  a  reasonable  state 
of  repair  of  a  highway;  Hubbard  v.  Concord,  35  N.  H.  60,  69  Am. 
Dec.  520;  Patterson  v.  Colebrook,  29  N.  H.  94;  or  what  shall  be  con- 
sidered a  reasonable  use  of  it  by  the  traveller. 

Our  opinion  therefore  is  that  this  does  not  belong  to  that  class  of 
cases  concerning  navigation,  trade,  or  manufactures,  about  which  the 
jury  may  be  supposed  to  require  the  aid  arising  from  the  proof  of  cus- 
toms or  usages ;  but  we  think  the  admission  of  -such  evidence  would 
be  to  open  an  extensive  field  of  enquiry  in  this  and  similar  cases,  upon 
the  same  principle,  that  would  tend  greatly  to  increase  the  expenses 
of  litigation,  without  affording  in  general  any  substantial  aid  to  the 

jury- 

The  direction  to  the  jury  upon  this  point  appears  to  have  been  based 
upon  the  highly  respectable  authority  of  Snow  v.  Parsons,  28  Vt.  459, 
67  Am.  Dec.  723,  but  upon  a  careful  examination  of  the  authorities  we 
are  unable  to  reconcile  it  with  the  course  of  our  own  courts  upon  that 
subject. 

There  must,  therefore,  be  a  new  trial.^^ 

2  5  B.  was  a  riparian  engaged  in  the  manufacture  of  white  paper,  In  which 
process  he  used  the  waters  of  the  stream.  A.,  -m  upper  riparian,  discharged 
into  the  stream  discolored  \vater  from  his  mine,  which  prevented  B.  from 
using  the  water  for  manufacturing  purposes.  Held,  B.  may  enjoin  A,  Beach 
V.  Sterling  Iron  &  Zinc  Co.,  54  N.  J.  Eq.  05,  33  Ati.  286  (1S95).  Ace:  Young 
V.  Bankier  Distillery,  [1893]  A.  C.  GOl. 

Ace,  where  the  discharge  from  tlie  mine  renders  the  water  unusable  for 
domestic  or  agricultural  purposes:  Drake  v.  Lady  Ensley  Coal.  Iron  &  Ry. 
Co..  102  Ala.  501,  14  South.  749,  24  L.  R.  A.  64.  48  Am.  St.  Rop.  77  (1893). 
Contra :  Pennsylvania  Coal  Co.  v.  Sanderson,  113  Pa.  126,  6  Atl.  453,  57  Am. 
Rep.  445  (1886). 

Compare  Barnard  v.  Sherley,  135  Ind.  547,  34  N.  E.  600,  35  N.  E.  117,  24 
L.  R.  A.  568,  41  Am.  St.  Rep.  454  (1893)  ;  Id.,  151  Ind.  160,  47  X.  E.  671,  41 
L.  R.  A.  737  (1898) ;  Merrifield  v.  City  of  Worcester,  110  Ma.ss.  216,  14  Am. 
Rep.  592  (1872) ;  Stouts  Mountain  Coal  &  Coke  Co.  v.  Ballard,  195  Ala.  283, 
70  South.  172  (1915). 

"But  the  defendants  contend  that  the  plaintiffs  have  no  right  to  complain 
of  any  pollution  of  the  Hebhle  occasioned  by  them,  because  there  are  many 
other  manufacturers  who  pour  polluting  matter  into  the  stream  above  the 
plaintiffs'  works,  so  that  they  could  never  have  the  water  in  a  fit  state  for 
use,  even  if  the  defendants  altogether  ceased  to  foul  it.  The  (tase  of  St. 
Helens'  Smelting  Company  v.  Tipping,  11  H.  L.  C.  642;  11  Jur.  (N.  S.)  785,  is, 
however,  an  answer  to  this  defence.  Where  there  are  many  existing  nuis-. 
ances,  either  to  the  air,  or  to  water,  it  may  be  very  ditttiult  to  trace  to  its 
source  the  injury  occasioned  by  any  one  of  them  ;  but  if  tlie  defendants  add 
to  the  former  foul  state  of  the  water,  and  yet  are  not  to  be  lesponsible  on 
account  of  its  previous  condition,  this  cons(Hiuonce  would  follow,  that  if  the 
plaintiffs  were  to  make  terms  with  the  other  polluters  of  the  stream  so  as 
to  have  water  free  from  impurities  produced  by  their  works,  the  defendants 
might  say:     'We  began  to  foul  the  stream  at  a  time  when,  as  against  you, 


T ;??.,./  >- 


? 


88  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part  1 

STOCKPORT  WATERWORKS  CO.  v.  POTTER. 

(Court  of  Exchequer,  1864.     3  Hurl.  &  C.  300.) 

[Action  for  fouling  the  water  of  the  river  Mersey. 

For  about  fourteen  years  prior  to  1853  the  owners  of  the  Woodbank 
estate,  a  riparian  tract,  had  been  in  the  habit  of  drawing  water  from 
what  was  called  the  Nab  Pool  weir,  this  being  part  of  the  riparian 
tract.  The  water  ^o  drawn  was  carried  by  tunnels  and  conduits  to,  and 
used  to  supply  the  town  of,  Stockport.  In  1853  the  owners  of  the 
Woodbank  estate  executed  to  the  plaintiffs  a  deed  under  which  the 
Stockport  waterworks  and  the  use  of  the  conduits  and  tunnels  were 
ceded  to  the  plaintiff".  The  latter  continued  to  draw  the  water  in  the 
same  way  up  to  the  time  of  the  bringing  of  this  action,  so  that  the  user 
had  been  continuous  for  over  20  years.  It  was  asserted  by  the  plain- 
tiffs and  denied  by  the  defendant  that  the  right  to  take  the  water  from 
the  stream  was  also  granted  to  the  plaintiffs  by  the  above  mentioned 
deed. 

That  the  defendant  had  unduly  fouled  the  stream  was  to  be  taken 
for  granted  for  the  purposes  of  this  decision.] 

BramwELIv,  B.^''  *  *  *  Qa^  ^  grantee  from  a  riparian  proprie:i 
tor  of  land,  part  of  the  former  riparian  estate,  but  separated  from  the 
stream  by  land  of  the  grantor  not  included  in  the  grant,  with  a  grant 
from  the  grantor  of  a  right  to  lay  pipes  from  the  stream  to  the  granted 
land  and  take  water  by  means  of  them  from  the  stream  to  such  grant- 
ed land,  maintain  an  action  against  a  person  who  fouls  the  stream? 
It  is  strange  that  this  question  should  arise  for  the  first  time.  There 
can  be  no  doubt  that  the  grant  as  between  the  riparian  grantor  and  the 
grantee  is  good.  And  there  is  this  to  be  said  in  favour  of  supporting 
the  present  claim,  that  we  must  suppose  that  the  grantor  and  gran- 
tee have  found  the  arrangement  to  be  to  their  mutual  advantage,  that 
the  stream  can  be  more  beneficially  used  this  way  than  otherwise. 
Consequently  that  such  an  arrangement  is  for  the  public  good.  Why, 
then,  should  it  not  be  effectual  against  a  person,  who  as  against  the  ri- 
parian proprietor  is  a  wrongdoer?  It  imposes  no  additional  burden 
on  the  riparians  or  others  abdve.  If  they  are  wrongdoers  by  fouling 
now,  so  were  they  before.  They  could  be  restrained  by  injunction  be- 
fore if  they  can  now.  No  doubt  they  might  be  made  liable  to  larger 
damages  than  they  would  have  been  before,  but  their  rights  are  not 
altered.     It  was  said  that  innumerable  actions  might  be  brought  if  the 

•  it  was  lawful  for  us  to  do  so,  inasmuch  as  it  was  unflt  for  your  use,  and 
you  cannot  now,  by  getting  rid  of  the  existing  pollutions  from  other  sources, 
prevent  our  continuing  to  do  what,  at  the  time  when  we  began,  you  had  no 
right  to  object  to.' "  Chelmsford,  L.  C,  in  Crossley  &  Sons,  Limited,  v. 
Lightowler,  L.  R.  2  Ch.  App.  478,  481  (1867). 

Compare  Ferguson  v.  Firmenich  Mfg.  Co.,  77  Iowa,  576,  42  N.  W.  448, 
14  Am.  St.  Rep.  319  (1889). 

2«  The  statement  of  facts  is  rewritten  and  parts  of  the  opinions  are  omitted. 


Ch.  4)  STREAMS  89 

law  were  as  the  plaintiffs  contend.  But  there  are  two  answers  to  this, 
one  practical,  viz.,  that  they  would  not  be  brought,  the  other  that  the 
same  might  happen  now  if  the  smallest  portion  of  the  bank  was  grant- 
ed with  the  right.  •  A  similar  answer  may  be  given  to  the  supposed 
difficulty  of  the  riparian  proprietors  above  desiring  to  buy  up  rights  be- 
low. The  power  to  make  such  a  grant  then  is  for  the  benefit  of  the 
grantor  and  grantee,  and  the  public ;  and  the  only  prejudice  by  it  to 
the  riparian  or  wrongdoer  above  is  the  liability  to  greater  damages  and 
to  an  action  and  injlinction  at  the  suit  of  persons  additional  to  the  ri- 
parians below.  But  this  consideration  could  not  preclude  a  covenant 
by  the  grantor  that  the  grantee  might  apply  in  his  name  for  an  injunc- 
tion or  sue  in  his  name,  nor  would  it  preclude  a  grant  of  the  part  of  the 
bank  where  the  water  was  taken,  in  which  case  it  is  clear  the  grantee 
might  maintain  an  action  or  obtain  an  injunction.  And  this  suggests 
to  me  the  remark  that  what  may  be  done  indirectly  may  be  directly. 
Further,  it  does  seem  strange  that  if  a  man  has  an  estate  on  the  bank 
of  a  stream  extending  a  mile  from  it,  he  may  build  houses  on  the  land, 
conduct  water  from  the  stream  to  them,  and  maintain  an  action  and 
recover  substantial  damages  for  the  injury  to  each  house:  that  his 
tenants  of  each,  if  he  let  them,  might  do  the  same  even  though  he  de- 
mised them  for  1000  years  at  a  peppercorn  rent,  but  that  if  he  grants 
away  the  house  in  fee  with  the  right  of  water,  such  grantee  can  main- 
tain no  action.  What  is  to  happen  if  he  does  so  and  repurchases? 
What  would  be  the  case  if  a  riparian  proprietor  added  to  his  estate  an- 
other, to  which  water  had  been  so  conducted  ?  Suppose  a  riparian  pro- 
prietor on  both  sides  for  a  great  length  wholly  alters  the  course  of  the 
stream,  could  he  not  effectually  complain  of  a  fouling  of  the  water  in 
the  new  course?  Suppose  besides  the  new  course  he  allowed  the  old 
one  to  continue,  the  stream  running  in  both,  could  he  not  then  maintain 
actions  for  the  damage  done  to  either?  If  he  could,  could  not  his  gran- 
tee of  lands  on  the  new  stream,  and  if  such  grantee  could,  why  cannot 
the  plaintiffs? 

If  the  defendants'  argument  is  well  founded,  it  will  follow  that 
where  the  owner  of  land  on  a  stream  has  built  a  mill  alongside  the 
stream  with  a  cut  or  lead  to  it,  and  sells  the  mill,  but  not  the  natural 
watercourse,  the  owner  of  the  mill  can  maintain  no  action  against  a 
riparian  owner  above  who  abstracts  the  water.  I  cannot  tliink  this  is 
so.  Further,  suppose  the  person  fouling  the  water  was  not  a  riparian 
proprietor  but  a  mere  wrongdoer,  why  should  not  an  action  lie  against 
him?  I  can  see  no  reason,  nor  can  I  see  that  his  being  such  proprie- 
tor makes  any  difference.  Upon  these  various  considerations  it  seems 
to  me  this  action  is  maintainable.  I  think  it  may  fairly  be  asked  to 
what  extent  I  would  carry  the  principle  upon  which  I  decide  this? 
My  answer  is,  to  the  extent  to  which  die  analogous  case  extends  of  a 
grantee  of  a  right  of  way.  Where  a  grantee  of  a  right  of  way  could 
maintain  an  action  for  disturbance  of  his  way,  so  do  I  think  the  gran- 
tee of  a  right  of  water  might.     This  case  of  the  right  of  way,  and 


90  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part  1 

cases  of  right  of  common,  seem  to  me  analogous  to  this  case  and  au- 
thorities for  my  opinion.  I  am  of  course  aware  of  the  case  of  Keppeli 
V.  Bailey,  2  Myl.  &  K.  516,  and  agree  that  new  rights  of  property  can- 
jiot_be_creatjed,  but  I  think  that  rule  does  not  interfere  with  the  presence 
case.  There,  an  owner  of  land  was  resisting  a  burden  put  on  it  by  a 
former  owner,  and  it  was  held  that  burden  could  not  be  attached  to 
the  land  in  the  hands  of  the  assignee.  Here,  no  doubt,  it  can  be,  that 
is  to  say,  on  the  lands  of  the  riparian  proprietors,  the  Marsdens.  The 
question  is  not  with  them,  but  with  one  who  would  be  a  wrongdoer  if 
he  had  no  riparian  estate  or  occupation,  and  is  not  the  less  so  because 
he  has.  Nor  is  Hill  v.  Tupper,  2  H.  &  C.  121,  any  authority  against  the 
maintenance  of  this  action.  That  case  decided  that  in  respect  of  what 
was  no  estate,  and  which  gave  no  possession,  but  merely  a  right  of  ac- 
tion, against  a  covenantor,  that  right  could  not  be  enforced  against  a 
third  party.  On  the  other  hand,  Whaley  v.  Laing,  3  H.  &  N.  675,  901, 
seems  a  strong  authority  in  favour  of  the  plaintiff ;  for  all  the  Judges 
seem  to  have  considered  that  had  the  water  been  taken  as  of  right  the 
' '  action  would  have  been  maintainable.  I  have  only  to  add  that,  to  my 
mind,  this  is  not  a  question  of  easement  or  of  dominant  and  servient 
tenement.  The  plaintiffs  rely  on  the  possession  and  enjoyment  as  of 
right,  and  charge  the  defendant  as  a  wrongdoer,  not  the  less  because 
he  is  a  riparian  owner.    I  think  the  plaintiffs  are  entitled  to^udgment. 

PoivLOCK,  C.  B.  I  am  about  to  deliver  the  judgment  of  my  Brother 
Channels  and  myself.  My  Brother  WildE,  being  no  longer  a  mem- 
ber of  the  Court,  takes  no  part  in  the  judgment ;  but  it  may  be  satis- 
factory to  the  profession  to  know  that  he  had  prepared  a  judgment 
founded  on  the  principles  which  I  am  about  to  state.  *  *  * 
(^/^"^  There  is  no  doubt  that  if  the  plaintiffs  have  such  rights  in  reference 

to  the  stream  as  to  be  entitled  to  insist  upon  its  purity  for  practical 
purposes,  the  acts  of  the  defendants  constitute  a  cause  of  action. 

But  the  defendants  contend  that,  whatever  others  may  have,  the 
plaintiffs  have  no  such  rights.  And  they  raise  a  variety  of  very  for- 
midable objections. 

In  the  first  place,  the  defendants  argue  that,  although  the  right  to 
pure  water  is  the  right  of  a  riparian  proprietor,  the  plaintiffs  are  not 
riparian  proprietors  at  all.  Nor  are  the  plaintiffs  the  assignees  of  a 
riparian  proprietor. 

For,  first,  the  law  knows  of  no  such  right  as  the  subject  of  assign- 
ment separate  from  the  land  in  respect  of  which  it  arises,  and,  secondly, 
no  such  assignment  has  in  fact  been  made. 

And  the  defendants  say  there  is  no  authority  for  the  proposition  that 
these  rights  in  respect  of  water,  which,  in  Embrey  v.  Owen,  6  Exch. 
353,  and  other  modern  cases  have  been  for  the  first  time  defined  and 
attributed  to  the  ownership  of  land  by  the  side  of  a  river,  can  be  dealt 
with  in  gross  and  assigned  in  any  way  except  in  conjunction  with  such 
land. 


Ch.  4)  STREAMS  91 

And  further,  that  if  such  rights  could  be  the  subject  of  transfer  they 
have  not  been  in  fact  transferred.     *     +     * 

.  The  defendants  also  say  that  the  rights  even  of  a  riparian  proprietor 
himself  would  not  extend  to  the  abstraction  from  the  stream  of  water 
for  the  use  of  a  populous  town  situated  on  land  in  no  way  connected 
with  such  stream,  and  the  conveyance  of  it  away  from  the  riverside 
to  a  considerable  distance  for  that  purpose  without  returning  it  into 
the  stream. 

But  then  the  plaintiff's  case,  thus  driven  from  a  more  exact  basis, 
is  placed  upon  the  fact  that  he  and  those  under  whom  he  claims  have 
done  the  same  thing  for  twenty  years. 

To  this  the  defendants  answer  that  the  mere  doing  of  a  particular 
thing  for  twenty  years  will  not  necessarily  give  a  right  of  action  against 
anybody  who  interferes  with  its  being  done  ^s  beneficially  as  it  hitherto 
has  been. 

The  plaintiffs,  thus  pressed,  contended  before  us  that  the  right  they 
claimed  .of  having  pure  water  come  down  the  stream  for  them  to  ab- 
stract and  use  was  an  "easement"  acquired  by  more  than  twenty  years 
user,  in  which  the  Stockport  Waterworks  were  the  dominant  tenement 
and  the  defendant's  land  the  servient  tenement.    *     *     * 

But  a  conclusive  answer  as  it  seems  to  us,  was  given  to  such  an  ease- 
ment. 

The  defendant's  land  is  far  higher  up  on  the  stream  than  the  con- 
duit or  tunnel  at  Nab  Pool  Weir  by  which  the  plaintiff's  abstract  the 
water. 

No  amount  of  water  abstracted  by  the  plaintiffs  or  those  under  whom 
they  claim  could  possibly  be  felt  by  the  defendants.  If  the  water  was 
abstracted  unlawfully  or  in  excessive  quantities,  or  not  returned  into 
the  river  the  proprietors  below  might  have  cause  to  complain,  but  tlie 
defendants  could  not,  because  they  could  not  be  affected  by  it.  They 
had  neither  the  will  nOr  the  power  to  interfere  with  the  plaintiffs'  use 
nor  to  take  legal  proceedings  against  them. 

Nogrant  could  therefore  be  presumed  by  the  defendants  because  no 
user  ever  existed  adverse  to  their  full  enjoyment  of  the  water.^  And 
Sanipson  v.  Hoddinott,  1  C.  B.  N.  S.  590,  611,  was  cited  as  an  express 
authority  for  this  proposition. 

We  have  thus  recapitulated  these  argtmnents  of  the  defendants  be- 
-cause  they  appear  to  us  to  contain  a  perfect  answer  to  the  plaintiffs' 
claim  in  whatever  light  it  can  be  put. 

It  is  difficult  to  perceive  any  possible  legal  foundation  for  a  right  to 
Jiavejthe  river  kept  pure,  in  a  person  situated  as  this  Company  is. 

There"seems  to  be  no  authority  for  contending  that  a  riparian  pro- 
prietor can  keep  the  land  abutting  on  the  river  the  possession  of  which 
gives  him  his  water  rights,  and  at  the  same  time  transfer  those  rights 
or  any  of  them,  and  thus  create  a  right  in  gross  by  assigning  a  portion 
of  his  rights  appurtenant. 


92  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part  1 

It  seems  to  us  clear  that  the  rights  which  a  riparian  proprietor  has 
with  respect  to  the  water  are  entirely  derived  from  his  PQssessiQiL_Qf 
land  abutting  on  the  river.  >  If  he  grants  away  any  portion  of  his  land 
so  abutting,  then  the  grantee  becomes  a  riparian  proprietor  and  has 
similar  rights.  But  if  he  grants  away  a  portion  of  his  estate  not  abut- 
ting on  the  river,  then  clearly  the  grantee  of  the  land  would  have  no 
water  rights  by  virtue  merely  of  his  occupation.  Can  he  have  them 
by  express  grant?  It  seems  to  us  that  the  true  answer  to  this  is  that 
he  can  have  them  against  the  grantor  but  not  so  as  to  sue  other  per- 
sons in  his  own  name  for  an  infringement  of  them.  The  case  of  Hill 
v.  Tupper,  2  H.  &  C.  121,  recently  decided  in  this  Court,  is  an  authority 
for  the  proposition  that  a  person  cannot  create  by  grant  new  rights  of 
property  so  as  to  give  the  grantee  a  right  of  suing  in  his  own  name  Jor 
an  interruption  of  the  right  by  a  third  party. 

The  case  where  a  riparian  proprietor  makes  two  streams  instead  of 
one  and  grants  land  on  the  new  stream,  seems  to  us  analogous  to  a 
grant  of  a  portion  of  the  river  bank,  but  not  analogous  to  a  grant  of  a 
portion  of  the  riparian  estate  not  abutting  on  the  river.  In  the  case  of 
a  grant  of  land  on  a  new  stream,  the  grantee  obtains  a  right  of  access 
to  the  river,  and  it  is  by  virtue  of  that  right  of  access  that  he  obtains 
his  water  rights. 

We  think  then  that  in  this  case  the  right  claimed  cannot  be  the  sub- 
ject of  a  grant  so  as  to  enable  the  plaintiffs  to  sue  in  their  own  name 
for  an  infringement. 

Nor  is  the  supposed  easement  founded  on  user  much  more  defensible. 

The  dominant  and  servient  tenements  have  no  apparent  connexion 
with  one  another. 

The  abstraction  of  the  water  from  the  stream  took  place  at  a  spot 
situated  on  other  land  than  that  now  called  the  dominant  tenement, 
and  in  no  sort  of  way  affected  the  enjoyment  of  the  water  at  what  is 
now  called  the  servient  tenement.     *    *     * 

Judgment  for  the  defendants.^^ 

27  X.  was  the  lessee  of  a  mill  situated  on  riparian  land,  but  not  iramediare- 
ly  on  the  stream.  C,  X.'s  lessor,  had  an  unsealed  agreement  with  B.,  the 
riparian  next  above  C.,  whereby  in  consideration  of  an  annual  payment,  C. 
had  dug  and  maintained  a  sluiceway  through  B.'s  land  to  the  mill  on  C.'s 
land,  the  water  being  subsequently  returned  to  the  stream.  The  mill  while  in 
X.'s  possession  continued  to  derive  its  water  power  from  this  source.  A.,  a 
riparian  above  B.,  diverted  stream.  Held,  X.  may  maintain  an  action  in 
his  own  name  against  A.     Nuttal  v.  Bracewell,  L.  R.  2  Exch.  1  (1866). 

X.,  a  non-riparian,  drew  water  from  the  stream  through  a  sluiceway  to 
his  mill,  whence  it  was  discharged  into  the  stream  by  another  sluice.  C,  a 
riparian,  erected  a  dam  that  backed  the  water  into  the  lower  sluice  and 
stopped  the  mill  wheel.     X.  brought  action  against  C.     The  court  said: 

"The  principle  settled  by  these  and  other  decisions  is,  that  one  having  the 
possession  of  property  may  maintain  an  action  against  a  wrongdoer  tor 
an  injury  thereto,  which  cannot  be  defeated  by  showing  the  title  to  be  in  some 
one  else  than   the  plaintiff. 

"We  see  no  good  reason  why  the  principle  should  not  be  applicable  to 
such  a  case  as  the  present.  The  plaintiff's  action  ought  not  to  be  barred, 
as  we  think,  on   the  ground  that  he  had  not  acquired  the  right  from,  the 


Ch.  5)  SURFACE    WATERS  93 

CHAPTER  V  • 
SURFACE  WATERS 


EULRICH  V.  RICHTER. 
tSupreme  Court  of  Wisconsin,  1875.     37  "Wis.  226.) 

Appeal  from  the  Circuit  Court  for  Winnebago  County. 

Action  for  dama°:es  for  the  alleged  erection  of  a  dam  across  a  brook 
or  water  course,  whereby  it  was  alleged,  that  the  defendant  had  caused 
the  water  to  set  back  and,  overflow  the  plaintiff's  land.  Answer,  a 
general  denial.  The  testimony  taken  on  the  trial,  for  the  most  part, 
tended  to  show  that  the  alleged  brook  was  a  ravine,  through  which 
surface  water,  which  had  gathered  on  the  higher  lands,  ran  during  the 
melting  of  snows,  and- after  heavy  rains,  and  sometimes  during  a  large 
portion  of  the  summer,  but  in  no  regular  or  defined  channel,  nor 
generally  so  as  to  hinder  the  growing  of  crops  in  the  ravine  on  plain- 
tiff's land ;  that  the  plaintiff  had  dug  or  plowed  two  ditches,  one 
up  and  down  tHe  ravine,  and  one  from  his  cellar,  and  run  them  under 
the  line  fence  upon  the  defendant's  land ;  that,  thereupon,  the  plaintiff 
[defendant]  had  erected  a  dam  to  prevent  the  discharge  of  the  waters 
from  such  ravine  and  ditches  upon  her  land.  The  court  instructed 
the  jury  in  substance  that,  there  being  no  substantial  conflict  in  the 
testimony,  as  to  tlie  character  of  the  stream,  as  a  proposition  of  law, 
upon  the  testimony,  the  locus  in  quo  is  a  water  course ;  and  the  de- 
Tendant  owning  land  upon  it,  had  no  right  to  dam  it  up,  and  set  the 
water  back  upon  the  upper  proprietors,  and  was  liable  for  the  resulting 
damages. 

Cole,  J.  We  think  the  learned  circuit  court  erred  in  charging  as  a 
proposition  of  law,  that  the  locus  in  quo  was  a  natural  water  course. 
The  jury  were  told  that  there  was  no  substantial  conflict  in  the  testi- 
mony with  reference  to  the  character  of  the  stream,  and  that  as  a  rnat- 
ter  of  law  it  was  a  water  course,  which  the  defendant  had  obstructed. 

The  definition  of  a  water  course,  as  given  by  Mr.  Angell,  and  which 
has  been~substantially  adopted  by  this  court,  is,  a  stream  of  water  con- 
sisting;_ of  a  bed,  banks  and  water ;  thoiigh  the  .water  need  not  flow 
continually,. , and  there  are  many  water  courses  wHTcR  are  sometime/ 


riparian  owners  mentioned,  to  divert  the  water  from  its  natural  channel 
He  may  be  called  upon  by  such  owners  to  respond  in  damages  for  doing  so 
But,  whether  he  shall  be  or  not,  it  is  a  matter  that  does  not  in  the  leasi 
concern  the  defendants."  Bristol  Hydraulic  Co.  v.  Boyer,  67  lud.  236,  240 
(1879). 

Compare  Williams  v.  Wadsworth,  51  Conn.  277  (1883) ;  Wyman  v.  Oliver. 
75  Me.  421  (1883) ;  St.  Anthony  Falls  Water-Power  Co.  v.  Minneapolis,  41 
Minn.  270.  43  N.  W.  56  (1889). 


94  RIGHTS   INCIDENTAL   TO    I'OSSESSION  (Part    1 

/ 

Ary.  There  is,  hov/ever,  a  distinction  in  law  between  a  regular  flow- 
ing stream  of  water,  which  at  certain  seasons  is  dried  up,  iand  those 
occasional  bursts  of  water,  which,  in  times  of  freshet,  or  melting  dt 
snow  and  ice,  descend  from  the  hills  and  inundate  the  country.  To 
maintain  the  character  of  a  water  course,  it  must  appear  that  the 
water  usually  flows  in  a  certain  direction,  and  by  a  regular  channel, 
with  banks  or  sides.  It  need  not  be  shown  that  the  water  flows  con- 
tinually; the  stream  may  at  times  be  dry;  but  it  must  have  a  well- 
defined  and  substantial  existence.  Angell  on  Watercourses,  §  4;  Hoyt 
V.  City  of  Hudson,  27  Wis.  656,  9  Am.  Rep.  473 ;  Fryer  v.  Warne,  29 
'wis.  511. 

According  to  our  understanding  of  the  testimony,  there  is  considera- 
ble doubt  whether  it  proves  a  water  course,  within  this  definition; 
or  whether  it  did  not  appear  that  the  water  was  mere  surface  water, 
descending  from  higher  to  lower  ground,  in  no  defined  channel,  in 
times  of  rain  or  the  melting  of  snows  and  ice  in  the  spring.  If  it  was 
mere  surface  water,  caused  by  rain  or  snow,  which  naturally  flowed 
down  the  hollow  or  ravine,  but  in  no  defined  natural  channel  having 
a  bed  and  banks,  then  it  was  not  a  water  course,  and  the  defendant 
had  the  right  to  use  such  means  as  she  might  deem  necessary  to  keep 
it  off  her  land.  For  this  court  has  adopted  the  common  la\v  rule,  that 
the  owner  of  the  superior  or  higher  ground  has  no  natural  easement 
or  servitude  to  discharge  mere  surface  water,  such  as  falls  or  ac^ 
cumulates  by  rain  or  the  melting  of  snow  on  his  land,  upon  and  over 
the  land  of  his  neighbor  which  may  happen  to  be  on  a  lower  plane^ 
(Pettigrew  v.  Village  of  Evansville,  25  Wis.  223,  3  Am.  Rep.  50 ;  Hoyt 
V.  City  of  Hudson,  supra)  ;  but  that  such  neighbor  has  the  right  to 
obstruct  or  change  the  flow  of  such  water  by  preventing  it  from  com- 
ing within  his  boundaries. 

There  was  testimony  which  tended  to  show  that  the  flow  of  water 
down  the  hollow  or  ravine  from  the  plaintiff's  to  the  defendant's  land 
was  not  in  any  regular  channel ;  that  it  was  only  occasional,  and  did 
not  prevent  the  cultivation  of  the  ravine,  or  the  growing  of  grass  there. 
The  plaintiff's  land  was  rolling,  and  considerably  higher  than  the  de- 
fendant's, and  of  course  all  surface  water  caused  by  rains  or  the  melt- 
ing of  snow  was  discharged  from  the  higher  through  the  lower  ground. 
But  there  was  testimony  from  which  the  jury  might  have  found  that 
this  flow  of  water  did  not  constitute  a  water  course  within  the  sense 
of  the  law ;  that  it  had  no  well-defined  channel  with  a  bed  and  banks, 
which  extended  from  the  land  of  the  plaintiff  upon  and  across  the 
land  of  the  defendant.  And  this  question,  whether  there  was  a  water 
course  there  or  not,  should,  we  think,  have  been  submitted  to  the  jury 
upon  the  evidence,  instead  of  being  decided'  as  a  proposition  of  law. 
Had  there  been  no  dispute  as  to  the  facts,  nor  any  testimony  which 
tended  to  show  that  the  locus  in  quo  was  not  a  water  course,  and  that 
the  rights  and  duties  of  proprietors  on  such  a  stream  had  no  applica- 
tion, the  charge  of  the  court  might  have  been  proper.     But,  upon  the 


Ch.  n)  SURFACE   WATERS  95 

testimony,  _tlie_auestion  should  have  gone  to  the  jury  to  determine 
whether  there  was  a  water  course  within  the  legal  definition. 

We  shall  go  into  no  examination  of  the  evidence  at  the  present  time, 
nor  express  any  opinion  as  to  what  inference  should  be  drawn  from  it. 
The  facts  of  the  case  are  not  so  clear  and  undisputed  as  to  warrant 
the  court  in  withdrawing  from  the  jury  the  question,  whether  the 
locus  in  quo  was  a  natural  water  course. 

We  therefore  think  there  must  be  a  new  trial. 

By  the  .Court.  The  judgment  of  the  circuit  court  is__reyersed,  and 
a  new  trial  awarded.^ 


MACOMBER  v.  GODFREY. 
(Supreme  Court  of  Massachusetts,  1871.    108  Mass.  219.)2 

Tort  for  the  diversion  of  a  water  course  by  the  defendant,  whereby 
the  water  was  prevented  from  flowing  through  the  plaintiffs'  land 
and  irrigating  their  crops.  Trial  in  the  superior  court,  before  Scudder, 
J.,  who  made  the  following  report  thereof : 

"The  plaintiffs'  counsel,  in  his  opening  to  the  jur}^  stated  that  the 
evidence  would  show  that  from  time  immemorial  a  natural  stream  of 
water  had  flowed  from  a  southerly  direction  across  the  road  and  upon 
the  defendant's  land,  taking  a  northwesterly  course  across  the  de- 
fendant's land ;  that  for  a  part  of  the  way  across  the  same  it  ran  in  a 
well-defined  channel,  but  when  it  reached  a  point  within  about  five 
rods  of  the  plaintiffs'  adjoining  land  the  water  spread  out  over  the 
surface  of  the  ground,  covering  a  space  a  few  rods  in  width,  and  so 
ran  upon  and  across  the  plaintiffs'  land,  which  was  a  level  meadow,  cov- 
ering the  same  for  several  rods  in  width,  and  irrigating  it  in  a  valua- 
ble manner  through  its  whole  length-,  about  seven  rods,  and  thence  on 
to  other  land  of  other  owners  beyond ;  that  from  the  point  where  it  so 
spread  out  over  the  surface  on  the  defendant's  land  there  was  no  defin- 
ed channel  either  on  the  defendant's  land  or  through  the  whole  length 
of  the  plaintiffs'  land,  and  not  until  a  short  distance  beyond  the  plain- 
tiffs' land,  where  it  again  formed. a  small  brook,  and  ran  off  in  a  west- 
erly direction  to  the  river;   that  the  plaintiffs'  and  defendant's  lands 

1  A  creek  furnishing  the  outlet  to  a  lake  was  blocked  by  sand.  Thereafter 
the  waters  of  the  lake,'  starting  at  the  lowest  part  of  the  bank  of  the  lake 
in  a  general  northerly  direction,  worked  over  the  flat  marshy  lands  cut  by 
low  ridges,  and  overgrown  by  bushes  to  another  creek.  Tliere  was  no  de- 
fined waterway,  but  for  most  of  the  year  the  water  had  a  sufficient  move- 
ment so  that,  if  not  interrupted,  it  would  reach  the  second  creek.  The  de- 
fendant erected  a  dike,  as  a  consequence  of  wbich  the  water  was  kept  off 
from  his'  lancfaiur"  worked  over  onto  land  of  the  plaintiff,  where  it  would 
not  have  gone  but  for  the  dike.  Held,  the  plaintiff  is  entitled  to  an  injunc- 
tion asainst,  the  maintenance  of  the  dike.  West  v.  Taylor,  16  Or.  165,  13 
Pac.  eBrTTtSBS).  See.  also,  Gillett  v.  Johnson,  30  Conn.  ISO  (1861) ;  Earl  v. 
De  Hart,  12  N.  J.  Eq.  2S0,  72  Am.  Dec.  395  (1S5C) ;  Boyntou  v.  Gilman,  53 
Vt.  17  (ISSO). 

2  The  statement  and  opinion  on  new  trial  are  omitted. 


90  RIGHTS   INCIDENTAL  TO  POSSESSION  (Part 'l 

formerly  belonged  to  the  same  ancestor,  and  the  division  was  made 
after  his  death  by  quitclaim  deeds;  and  that  the  defendant  di\erted 
this  stream  on  his  own  land  near  to  the  road,  where  it  was  a  water 
course  running  in  a  defined  channel,  turning  it  in  a  northerly  direc- 
tion so  that  it  ceased  to  flow  upon  the  plaintiffs'  land,  thus  injuring 
their  land  and  crops. 

"Upon  this  opening  statement,  the  judge  ruled  that  the  plaintiffs' 
action  could  not  be  maintained,  and  with  the  consent  of  parties  re- 
ports the  case  before  verdict  for  consideration  by  the  supreijie  judicial 
court.  If  the  above  ruling  is  correct,  judgment  is  to  be  entered  for  the 
defendant ;  if  it  is  incorrect,  the  case  to  be  sent  back  for  trial." 

Chapman,  C,  J.  The  defendant  admits  the  well-established  princi- 
ple, that,  where  there  is  a  natural  water  course,  each  successive  ripari- 
an proprietor  has  a  right  of  property  in  it,  and  may  maintain  an  ac- 
tion against  one  who  diverts  it  from  coming  down  to  his  land.  But  he 
contends  that  the  facts  stated  in  the  report  are  not  sufficient  to  es- 
tablish the  existence  of  such  a  water  course.  This  is  the  only  point 
now  presented  to  us. 

We  cannot  doubt  that  water  which  has  flowed  from  time  immemorial 
in  a  well-defined  channel  till  it  comes  upon  the  defendant's  land,  and 
again  after  it  has  passed  a  short  distance  beyond  the  plaintiffs'  land 
forms  a  brook,  and  thus  runs  across  the  land  of  several  proprietors 
to  a  river,  into  which  it  empties,  is  a  natural  water  course  when  it 
thus  flows.  But  the  defendant  contends  that  because,  at  a  point  on 
his  land  about  five  rods  above  the  plaintiffs'  land,  the  water  spreads 
out  over  the  surface,  covering  a  space  of  a  few  rods  in  width,  and 
thus  runs  upon  and  across  the  plaintiffs'  land,  which  is  a  level  meadow, 
and  covers  the  same  for  several  rods  in  width,  irrigating  it  in  a  valua- 
ble manner  through  its  whole  length,  being  about  seven  rods,  and 
during  this  whole  length  of  twelve  rods  has  no  defined  channel,  it 
ceases  to  be  a  water  course,  and  is  to  be  regarded  as  mere  surface 
water,  to  the  flow  of  which  the  plaintiffs  have  no  right. 

If  the  whole  of  the  stream  had  sunk  into  the  defendant's  soil,  and 
no  water  remained  to  pass  to  the  plaintiffs'  land  except  under  the 
surface,  it  would  have  ceased  to  be  a  water  course,  and  the  plaintiffs 
would  have  had  no  right  to  it.  Broadbent  v.  Ramsbotham,  11  Exch. 
602.  Buffum  v.  Harris,  5  R.  I.  243.  Or  if  the  water  had  only  flowed 
in  temporary  outbursts,  caused  by  melting  snow  or  by  rain,  it  would 
have  been  surface  water,  as  in  Ashley  v,  Wolcott,  11  Cush.  192;  the 
defendant  might  have  diverted  it,  and  the  plaintiffs  might  have 
raised  barriers  on  their  land  to  prevent  its  flowing  upon  their  lot  below. 
Gannon  v.  Hargadon,  10  Allen,  106,  S7  Am.  Dec.  02d  ;  Jrranklin  v.  Fisk, 
13  Allen,  211,  90  Am.  Dec.  194.  But  where,  owing  to  the  level  char- 
acter of  the  land,  it  spreads  out  over  a  wide  space  without  any  ap- 
parent banks,  yet  usually  flows  in  a  continuous  current,  and  passes 
over  the  surface  to  the  lands  below,  it  still  continues  to  be  a  water 
course.    Gillett  v.  Johnson,' 30  Conn.  180.    If  the  plaintiffs  had  erected 


Ch.  5)  SURFACE    WATERS  97 

a  barrier  to  keep  it  from  their  land,  it  would  evidently  have  accumu- 
lated, by  its  natural  and  regular  flow,  upon  the  defendant's  land,  not 
merely  when  there  were  melting  snows  or  rains,  but  at  all  ordinary 
seasons.  We  cannot  doubt  that  not  only  the  defendant,  but  all  the 
lower  proprietors,  could  have  maintained  an  action  against  the  plain- 
tiffs for  any  damage  caused  by  such  obstruction.  For^jtjhas  a  regular 
and  jiatural  flow  from  a  permanent  source ;  and  its  usual  course  is 
in  a  channel,  with  a  well-defined  bed  and  banks,  and  neither  upon  the 
land^of  the  plaintiffs  or  of  the  defendant  does  it  entirely  lose  this 
^character. 

Case  to  stand  for  trial.' 


SCHAEFER  v.  MARTHALER. 

(Supreme  Court  of  Minnesota,   1886.     34  Minn.  487,  26  N.   W.   726,   57  Am. 

Rep.  73.) 

GiLFiLLAN,  C.  J.  Action  to  enjoin  defendant  from  draining  a  small 
Jake_QrLpo.nd.  The  parties  own  and  occupy  adjoining  lands.  There  is 
situated  partly  on  the 'plaintiff's  land  and  partly  on  defendant's  land 
a  body  of  water,  four  and  one- fourth  acres  in  extent,  in  a  natural 
depression,  forming  a  basin,  fed  solely  by  surface  waters  produced 
by  rains  and  melting  snows  falling  upon  higher  adjacent  lands,  and 
running  naturally  into  such  basin.  The  greater  depth  of  the  water 
in  the  basin,  at  the  deepest  place,  is,  at  an  ordinary  stage,  five  feet, 
and  at  the  same  stage  its  greatest  depth  on  the  line  between  the  lands 
of  the  parties  is  two  and  nine-tenths  feet.  The  character  of  the  soil 
under  the  basin  is  such  that  it  retains  the  water,  so  that  the  only  waste 
is  from  evaporation,  except  during  high  water,  for  six  or  eight  weeks 
in  the  year,  when  it  overflows  through  a  natural  channel  situate  on 
defendant's  land.  There  is  another  natural  channel  on  defendant's 
land,  through  which,  during  heavy  rains,  and  when  there  is  an  ac- 
cumulation of  water  on  the  high  lands  from  melting  snow,  the  water 
flows  into  the  basin.  The  parties  have  owned  and  occupied  their  re- 
spective lands  for  30  years,  and  the  body  of  water  has  never,  so  far 
as  known,  been  dry  except  at  a  time  of  extreme  drought  in  the  year 
1864.  In  winter  the  water  freezes  to  the  bottom,  but,  by  cutting 
through  the  ice,  and  digging  into  the  mud  at  the  bottom,  water  for  stock 
can  be  obtained,  in  which  manner  plaintiff  has  often  procured  water 
for  his  stock. 

There  must  be  in  this  state  a  great  number  of  bodies  of  water  simi- 
lar to  this — some  larger,  some  smaller — situate  upon  lands  of  different 
owners ;    so  that  the  question  involved  is  one  of  considerable  im- 

3 Ace.:  Mitchell  v.  Bain,  142  Ind.  604,  42  N.  E.  230  (1895).  Otherwise 
where  the  water  spreads  out,  but  does  not  again  form  itself  into  a  stream. 
Hawley  v.  Sheldon,  64  Vt.  491,  24  Atl.  717,  33  Am.  St.  Rep.  941   (1892). 

BiG.RlGHTS — 7 


98  RIGHTS   INCIDENTAL   TO   POSSESSION  (Part   1 

portance.  The  question  has  never  been  before  this  court.  In  Bennett 
V.  Murtaugh,  20  Minn.  151,  (Gil.  135),  an  injunction  against  draining 
a  small  lake  was  sustained,  but  the  point  here  raised  was  not  presented. 
The  defendant  claims  the  right  to  drain  the  lake  or  pond,  on  the 
proposition  that  it  is  surface  water,  (because  coming  into  the  basin, 
over  the  surface  of  adjacent  lands,  from  rains  and  melting  snows,) 
and  that  the  rule  applicable  to  surface  waters  applies.  It  is  somewhat 
strange  that,  so  far  as  we  are  able  to  ascertain,  there  is  no  case  re- 
ported which  decides  the  rights,  with  respect  to  such  a  body  of  water, 
of  the  different  owners  of  the  land  on  which  it  lies.  The  cases  most 
nearly  analogous  are  those  relating  to  water  courses.  Under  the 
common  law  there  is  a  marked  difference  in  the  rules  governing  in 
cases  of  surface  waters  and  those  applicable  to  water  courses ;  for 
one  owner  is  under  no  obligation  to  receive  upon  his  own  land  surface 
waters  from  the  land  of  another,  nor  to  permit  them  to  flow  from  his 
land  to  that  of  another,  nor  to  retain  them  on  his  land  for  the  benefit 
of  other  lands.  Such  waters  belong  to  or  are  a  part  of  the  land  on 
which  they  happen  to  be  at  the  time,  and  the  owner  may  ordinarily 
do  what  he  will  with  them  while,  on  his  land,  doing  no  unnecessary 
harm  to  others.  But  a  natural  water  course  is  the  common  property 
of  the  lands  through  which  it  flows,  to  this  extent :  that  no  owner  may 
arrest  its  passage,  either  to  prevent  its  coming  upon  his  own  land  or 
going  to  the  land  of  another.  It  is  regarded  as  an  advantage  or  ele- 
ment of  value  to  each  piece  of  land  through  which  it  flows,  which 
nature  has  bestowed  upon  it,  and  which  belongs  as  much  to  one  piece 
of  land  through  which  it  runs  as  to  another.  When  surface  waters 
reach  and  become  part  of  a  natural  water  course,  they  lose  their  char- 
acter of  surface  waters,  and  come  under  the  rules  governing  water 
courses.  Broadbent  v.  Ramsbotham,  11  Exch.  602;  Earl  v.  De  Hart, 
12  N.  J.  Eq.  280,  72  Am.  Dec.  395 ;  Jones  v.  Hannovan,  55  Mo.  462 ; 
Swett  v.  Cutts,  50  N.  H.  439,  9  Am.  Rep.  276;  Gibbs  v.  Williams,  25 
Kan.  214,  37  Am.  Rep.  241 ;  Palmer  v.  Waddell,  22  Kan.  352.  But 
before  they  reach  the  water  course,  while  they  are  still  surface  wafers, 
— that  is,  while  they  are  oozing  through  the  soil,  or  diffusing  or  squan- 
dering themselves  over  the  surface,  following  no  defined  course, — 
the  owner  of  the  soil  on  which  they  happen  to  be  may  appropriate  or 
divert  them  in  the  ordinary  and  reasonable  use  of  his  land.  He  is 
under  no  obligation  to  keep  his  land  as  a  watershed,  to  feed  the  stream  ; 
nor  to  keep  it  as  a  receptacle  to  receive  and  retain  the  overflow  from 
the  stream.  The  waters  pass  beyond  his  right  of  appropriation  as  soon 
as  they  reach,  even  on  his  own  land,  the_  natural  water  course.  liis 
right  in  respect  to  the  waters  is  then  qualified,  and  must  be  exercised 
'A'uh  due  regard  to  the  rights  of  others  in  the  stream.  xA.nd  such  waters, 
when  they  have  ceased  to  spread  and  diffuse  over  the  surface  or  per- 
colate through  the  soil;  when  they  have  lost  their  casual  and  vagrant 
character,  and  have  reached  and  come  to  rest  in  a  permanent  mass  or 
■body,  in  a  natural  receptacle  or  reservoir,  not  spreading  over  or  soak- 


Ch.  5)  SURFACE    WATERS  91) 

ing  into  the  soil,  forming  mere  bog  or  marsh, — cannot  be  regarded 
as  surface  waters  any  more  than  they  can  be  after  they  have  entered 
into  a  stream.  The  mass  or  body  of  water  constituting  a  lake  or  pond 
is  an  advantage  or  element  of  value  to  the  land  upon  which  nature  has 
placed  it,  of  the  same  kind  as  is  the  water  course  to  the  lands  through 
which  nature  has  caused  it  to  flow.  There  is  no  reason  which  can  be 
suggested  why  the  stream  should  be  the  property  of  each  on  his  own 
land,  of  all  the  lands  through  which  it  flows,  and  why  one  owner 
should  not  prevent  its  flow,  as  nature  caused  it  to  flow,  upon  the  land 
of  another,  that  is  not  equally  applicable  to  a  body  of  water  like  this ; 
and  none  can  be  suggested  why  the  rights  of  the  owners  of  the  lands 
upon  which  nature  has  placed  it  should  not  be  equal  to  the  rights  in 
respect  to  a  stream. 

Applying  the  same  rules  that  apply  in  respect  to  a  water  course, 
it  would  follow  that  no  one  is  bound  to  keep  his  land  as  a  watershed, 
to  feed  such  a  body  of  water;  nor  as  a  receptacle  to  retain  the  over- 
flow from  it ;  but  that,  in  the  reasonable  and  ordinary  use  or  improve- 
ment of  his  land,  he  may  interfere  with  or  arrest  the  surface  waters 
before  they  reach  such  body,  or  may  drain  off  any  bog  or  marsh  on 
Jiis  land  formed  by  the  overflow,  although  the  doing  of  either  may 
incidentally  affect  the  amount  of  water  in  the  lake  or  pond.  We  there- 
fore hold  that  defendant  h^f^  not  the  right  to  drain  off  the  lake. 
Judgment  affirmed.* 


THOMPSON  V.  NEW  HAVEN  WATER  CO. 
(Supreme  Court  of  Connecticut,  1913.     86  Conn.  597,  86  Atl.  585.) 

[The  defendant  was  an  upper  riparian  proprietor;  the  plaintiff 
owned  meadow  land  below  the  defendant,  situate  about  600  feet  Lack 
from  the  river.  In^the  spring  freshets,  the  flood  water  of  the  river 
would  frequently  run  down  from  the  defendant's  land  to  the  plaintiff's 
meadow,  fertilizing  it  by  the,_sedimentary  deposits.  These  freshets  oc- 
curred only  in  winter  and  spring,  and  in  some  years  there  were  none  at 
all.  Their  frequency,  when  they  did  occur,  varied  from  year  to  year. 
The  defendant  built  a  low  dike  and  constructed  a  conduit  upon  its  own 
land,  which  intercepted  the  freshet  water  and  diverted  it  to  the  de- 
fendant's reservoir,  xthereby  depriving  the  plaintiff's  land  of  the  benefit 
of  these  freshets.  He  sued  to  recover  the  damages  so  caused,  and 
to  enjoin  the  defendant  from  maintaining  the  embankment.. 

Judgment  for  the  plaintiff;  defendant  appeals.] 

4  The  dissenting  opinion  of  Berry,  J.,  is  omitted.  Ace:  Alcorn  v.  Sadler, 
66  Miss.  221,  5  Soutli.  694  (1889).  See  Hebron  Gravel  Road  Co.  v.  Harvey, 
90  Ind.  192,  46  Am.  Rep.  199  (1883). 

In  Applegate  v.  Franklin,  109  Mo.  App.  293,  84  S.  W.  347  (1904),  a  body  of 
water  covering  2,500  acTes  and  varying  in  depth  from  3  to  6  feet  was  held 
surface  waterT  which  an  abutting  owner  might  drain,  even  though  so  doing 
damaged  another  abutting  owner. 


100  niGHTS  iNciDEXTAL  TO  POSSESSION  (Part  1 

PrEnticE',  C.  J.6  *  *  *  These  definitions  [of  a  water  course] 
necessarily  imply,  what  is  more  directly  stated  in  others,  that  it  is  a 
distinguishing  mark  of  a  water  course  that  there  be  "a  supply  which 
is  permanent  in  the  sense  that  similar  conditions  will  always  produce 
a  flow  of  water,  and  that  the  conditions  recur  with  some  degree  of 
regularity,  so  that  they  establish  and  maintain,  for  considerable  peri- 
ods of  time,  a  running  stream."  Farnham  on  Waters  and  Water 
Courses,  §  457. 

"Surface  water"  is  a  term  which  has  been  defined  or  vised  variously. 
A  few  of  the  definitions  embody  statements  which  would  imply  that 
it  is  a  term  appropriate  to  be  applied  to  all  fresh  water  upon  the 
surface  of  the  eartli,  not  ponded,  which  is  not  that  of  a  water  course. 
Other  authorities  while  giving  a  definition  which  afifords  no  logical 
foundation  for  such  a  broad  use  of  the  term,  act  upon  the  assumption 
that  all  nonponded  fresh  water  is  either  surface  or  stream  water.  The 
better  and  more  generally  stated  definitions  and  those  which  permit  a 
consistent  application  productive  of  just  results  confine  surface  water 
within  more  definite  limits. 

For  instance,  Amer.  &  Eng.  Ency.  of  Law  (volume  30,  p.  323)  says : 
"Surface  water  may  be  defined  as  waters  on  the  surface  of  the  ground 
which  are  of  a  casual  or  vagrant  character,  following  no  definite  course, 
and  having  no  substantial  or  permanent  existence,  and  which  are  lost 
by  being  diffused  over  the  surface  of  the  ground,  through  percolation 
into  the  soil  or.  evaporation."  Farnham  treats  it  as  water  appearing 
upon  the  surface  of  the  ground  in  a  diffused  state,  with  no  permanent 
source  of  supply  or  regular  course,  and  then  disappearing  by  percola- 
tion or  evaporation.  Section  878.  Water  is  surface  water  while  it  is 
oozing  through  the  soil  or  diffusing  and  squandering  itself  over  the 
surface,  following  no  defined  course.  Schaefer  v.  Marthaler,  34  Minn. 
487,,  26  N.  W.  726,  57  Am.  Rep.  73.  These  definitions  are  doubtless 
open  to  criticism,  as  where  the  means  of  disappearance  are  limited  to 
percolation  and  evaporation,  and  natural  drainage  into  water  courses 
is  ignored.  But  they  serve  to  indicate  that  water  moving  in  volume, 
whose  source  is  a  stream,  is  excluded,  and  that  conditions  presenting 
the  general  appearance  upon  the  surface  of  the  earth  of  those  created 
by  rain  or  snowfall  are  those  intended  to  be  embraced.  There  are 
cases  which  appear  to  limit  the  term  to  water  which  had  its  immediate 
source  in  rains  or  melting  snow.  Crawford  v.  Bambo,  44  Ohio  St. 
287,  7  N.  E.  429.  Others  have  properly  included,  as  possible  sources 
of  surface  water,  springs  upon  or  underneath  the  ground.  Grand 
Junction  Canal  Co.  v.  Shugar,  6  L.  R.  Ch.  App.  483,  486;  Gray  v. 
McWilliams,  98  Cal.  157,  32  Pac.  976,  21  L.  R.  A.  593,  35  Am.  St. 
Rep.  163. 

A  considerable  number  of  our  cases  have  dealt  with  surface  water. 
*     *     *     A  study  of  these  cases  is  convincing  that  the  accepted  con- 
is  Part  of  the  opinion  is  omitted. 


Ch.  5)  SURFACE   WATERS  101 

ception  of  surface  water  in  this  jurisdiction  is  one  which  is  not  suffi- 
ciently comprehensive  to  embrace  flood  water  escaped  from  channels 
in  large  volume  and  flowing  in  masses  to  its  destination  in  some  larger 
and  more  permanent  body. 

Looking  at  the  various  phases  which  the  freshet  overflow  of  streams 
may  assume,  it  is  apparent  that  it  may  present  the  unmistakable  in- 
dicia of  either  a  water  course  or  of  surface  water.  The  water  which 
has  overleaped  the  banks,  confining  the  normal  flow  of  the  stream,  may 
still  go  on  its  way  in  a  well-defined  channel.  Its  line  of  movement 
may  present  all  of  the  recognized  indications  of  a  water  course.  The 
bed,  banks,  and  flow  may  be  there,  so  that  the  water  clearly  deserves 
to  be  regarded  as  either  a  part  of  the  stream  from  whose  main  course 
Pt  was  turned  aside,  or,  at  least,  an  independent  stream.  On  the  other 
hand,  the  escaped  water  may  have  become  so  scattered  and  diffused 
over  the  adjoining  territory  and  there  taken  on  such  a  character  as  to 
present  all  the  recognized  characteristics  of  surface  water.  It  is  equal- 
ly evident  that  this  overflow  may  appear  under  such  conditions  that  the 
requisites  of  a  water  course,  according  to  our  definition,  are  not  pres- 
ent, and  at  the  same  time  the  characteristics  of  surface  water,  accord- 
ing to  our  accepted  notions,  are  not  discoverable. 

We  are  thus  presented  with  the  important  practical  question  as  to 
whether  we  shall  change  our  definitions  so  that  the  limits  of  the  fields 
of  the  two  classes  shall  be  brought  together,  and  the  two  be  made  com- 
prehensive enough  to  Include  all  nonponded  fresh  water,  or  shall 
recognize  a  third  class  between  the  two,  to  be  dealt  with  independently, 
and  with  a  sole  regard  for  the  conditions  it  may  present.  In  sub- 
stantially all,  if  not  all,  jurisdictions  where  there  has  been  occasion  to 
deal  with  conditions  arising  from  flood  water,  the  courts  have  felt 
under  the  necessity  of  finding  a  place  for  it,  in  one  or  the  other  of  the 
two  classes  referred  to,  by  some  sort  of  expedient  and  at  whatever 
cost  of  inconsistency.  The  result  has  been  a  most  perplexing  medley 
of  decisions  which  refuse  to  yield  a  satisfactory  working  rule.  In 
some  cases  flood  water  has  been  made  to  masquerade  as  surface  water ; 
in  more  as  a  water  course.  The  great  struggle  has  been  to  so  classify 
it  that  justice  to  the  rights  of  parties  under  the  given  conditions  might 
be  done.  When  the  classification  has  once  been  thus  established,  the 
difficulty  has  arisen  that  It  fails,  under  another  set  of  conditions,  to 
lead  to  results  consonant  with  justice,  if  accepted  principles  applicable 
to  the  class  where  the  new  conditions  find  themselves  placed  are  ob- 
served. Then  has  come  the  necessity  for  legal  gymnastics,  if  palpably 
right  results  were  to  be  attained.  A  good  illustration  Is  furnished  by 
certain  English  cases.  They  have  held  that  there  was  no  good  basis 
for  distinction  between  the  ordinary  water  of  a  stream  and  flood  water. 
Menzies  v.  Breadalbone,  3  Bllgh  N.  S.  414;  Rex  v.  Trafiford,  1  Barn. 
&  Adol.  874;  And  yet  in  the  latter  case,  on  appeal,  the  court  did  not 
hesitate  to  say  that  a  landowner  might  raise  the  banks  of  a  stream  so 


102  RIGHTS   INCIDENTAL   TO   POSSESSION  (Part   1 

that  its  waters  might  not  escape' as  it  had  been  accustomed  to  do.  Traf- 
ford  V.  The  King,  8  Bing.  204.     *     *     * 

The  questions  which  have  arisen,  where  flood  water  conditions  were 
involved,  have  usually  grown  out  of  the  raising  of  the  bank  of  the 
stream  to  prevent  overflow,  or  the  obstruction  or  diversion  of  the 
flood  flow  whereby  it  was  cast  back  or  thrown  over  upon  the  land  of 
another  proprietor  in  accumulated  or  accelerated  volume  to  his  dam- 
age. The  rights  of  parties  in  such  cases  are  not  hard  to  find,  and 
would  not  be  difficult  of  definition,  as  applied  to  flood  water  alone. 
We  have  here,  however,  a  very  different  question.  It  involves  the 
right  of  a  lower  proprietor  to  have  the  natural  flood  flow  continued 
to  his  land  for  the  benefit  which  will  be  derived  from  it.  This  gen- 
eral subject  is  one  which  might  be  presented  in  various  aspects.  We 
have  no  occasion  to  attempt  to  anticipate  all  of  them  and  formulate  a 
rule  applicable  thereto.  The  case  presents  a  comparatively  simple 
situation,  and  we  may  well  confine  our  ^attention  to  that. 

The  evidence  discloses  that  the  defendant,  the  upper  proprietor;^  has 
not  attempted  to  appropriate  the  flood  water  reaching  its  land  in  the 
improvement  or  enjoyment  of  such  land,  or  to  interfere  with  or  affect 
the  flow  of  the  water  for  any  purpose  connected  with  that  land.  The 
embankment,  in  so  far  as  appears  or  can  be  imagined,  neither  serves, 
nor  was  intended  to  serve,  any  useful  purpose.  The  conduit,  as  it 
was  when  the  damage  for  which  recovery  was  permitted,  was  equally 
useless  for  any  present  purpose,  except  as  it  may  have  carried  surface 
or  flood  water  into  the  defendant's  reservoir  some  distance  away,  and 
there  made  it  available  for  sale.  Whatever  prospective  purpose  it 
had  was,  in  connection  with  the  defendant's  business,  carried  on  else- 
where, and  the  embankment  was  created  as  an  incident  of  the  conduit's 
construction.  We  thus  have  a  situation  in  which  the  plaintiff  was 
damaged  in  his  property  by  an  act  of  the  defendant  in  interfering  with 
the  natural  flaw  _pf^Jhe^flood  water,  which  had  no  justification  in  the 
improvement,  use,  enjoyment,  or  protection  of  its  land.  Damage  done 
under  such  circumstance  cannot,  with  due  regard  for  property  rights, 
be  regarded  as  absque  injuria.     *     *     * 

There  is  no  error.    In  this  opinion  the  other  Judges  concurred.* ' 

6  A.,  who  had  lawful  access  to  a  river,  erected  a  diverting  conduit,  through 
which  he  proposed  to  conduct  water  to  non-riparian  land.  The  conduit  was 
so  constructed  that  it  would  not  divert  the  ordinary  How  of  the  stream  or  or- 
dinary freshets,  but  only  extraordinary  floods  in  the  rainy  season.  Held, 
B.,  a  lower  riparian,  has  no  right  of  action  in  the  lack  of  a  showing  that  this 
diversion  will  damage  him.  Gallatin  v.  Corning  Irrig.  Co.,  163  Cal.  405,  12(j 
Pac.  864,  Ann.  Cas.  1914A,  74  (1912). 

B.  owned  land  bordering  on  the  Ohio  river  below  that  of  A.  B.  had  plant- 
ed a  thieli  row  of  trees  along  the  boundary  between  the  two  tracts.  Prior 
to  the  growth  of  these  trees  the  annual  flood  water  of  the  Ohio  river  would 
sweep  over  the  land  of  A.,  unobstructedly.  As  the  trees  increased  in  size, 
they  formed  a  barrier  1>y  means  of  which  floating  timber  and  other  trash 
carried  down  by  these  floods  were  arrested  and  kept  back  on  the  land  of  A. 
As  a  consequence  of  the  barrier  so  formed,  the  flood  waters  stayed  longer 
on  the  land,  and  trash  and  sand  were  deposited  there,  so  that  much  of  the 


Ch.  5)  SURFACE    MAIERS  103 

BARKLEY  v.  WILCOX. 

(Court  of  Appeals  of  New  York,  1S81.     86  N.  Y.  140,  40  Am.  Rep.  519.) 

Appeal  from  a  judgment  entered  below  in  favor  of  defendant. 

This  action  was  brought  to  recover  damages  for  injuries  alleged 
to  have  been  sustained  by  the  obstruction  of  the  natural  flow  of  sui-- 
face  water  from  plaintiff's  lot  over  and  across  that  of  defendant. 

Andrews,  J.''  This  is  not  the  case  of  a  natural  water  course.  A 
natural  water  course  is  a  natural  stream  flowing  -in  a  defined  bed  or 
channel,  with  banks  and  sides,  having  permanent  sources  of  supply.  It 
is  not  essential  to  constitute  a  water  course  that  the  flow  should  be  uni- 
form or  uninterrupted.  The  other  elements  existing  a  stream  does  not 
lose  the  character  of  a  natural  water  course,  because  in  times  of  drought 
the  flow  may  be  diminished  or  temporarily  suspended.  It  is  sufficient 
if  it  is  usually  a  stream  of  running  water.  Ang.  Water  Courses,  §  4 ; 
Luther  v,  Winnisimmet  Co.,  9  Cush.  (Mass.)  171. 

The  parties  in  this  case  own  adjacent  lots  on  a  street  near  a  village, 
but  not  within  the  corporate  limits.  The  findings  are  that  the  natural 
formation  of  the  land  was  such  that  surface  water  from  rains  and  melt- 
ing snows  would  descend  from  dift'erent  directions  and  accumulate 
in  the  street  in  front  of  the  plaintiff's  lot,  in  varying  quantities,  accord- 
ing to  tlie  nature  of  the  seasons,  sometimes  extending  quite  back  upon 
the  plaintiff's  lot;  that  in  times  of  unusual  amount  of  rain,  or  thaw- 
ing snow,  such  accumulations,  before  the_^ra(ding  of  the  defendant's 
lot,  were  accustomed  to  run  off  over  a  natural  depression  in  the  surface 
of  the  land  across  the  defendant's  lot,  and  thence  over  the  lands  of  oth- 
ers, to  the  Neversink  river;  that  when  the  amount  of  water  was  small 
it  would  soak  away  in  the  ground;  that  in  1871  the  defendant  built. a 
house-on  his  lot,  and  used  the  earth  excavated  in  digging  the  cellar  to 

land  was  ruined.  Held,  these  flood  waters  are  surface  waters  and  A.  has 
no  cause  of  action.  Taylor  v.  Ficlvas,  64  lud.  167,  31  Am.  Rep.  114  (1878). 
Ace:  Cass  v.  Dicks,  14  Wash.  75,  44  Pac.  118,  .53  Am.  St.  Rep.  859  (1896). 
Contra:     Pinkstaff  v.  Steffy,  216  111.  406,  75  N.  E.  163  (1905). 

A  railroad  built  a  bridge  across  a  river  passing  through  low  country.  Cul- 
verts in  the  embankment  built  by  it  for  its  roadbed  were  not  of  sufficient 
size  to  permit  ordinary  flood  waters  to  get  back  to  the  river,  and  as-  a  re- 
sult the  flood  waters  were  backed  up  against  upper  riparians  to  their  dam- 
age. Held,  the  railroad  is  liable  to  the  upper  riparians  for  the  damage  so 
caused.  Sullens  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  74  Iowa,  659,  38  N.  W.  545, 
7  Am.  St.  Rep.  501  (1888) ;  Abbott  v.  Kansas  City,  St.  J.  &  C.  B.  Ry.  Co., 
83  Mo.  271.  53  Am.  Rep.  581  (1884)  (overruling  and  discussing  earlier  Mis- 
souri cases) ;  Fordham  v.  Northern  Pac.  Ry.  Co.,  30  Mont.  421,  76  Pac.  1040, 
66  L.  R.  A.  556,  104  Am.  St.  Rep.  729  (1904) ;  Uhl  v.  Ohio  River  R.  Co.,  56  W. 
Va.  494,  49  S.  E.  378,  68  L.  R.  A.  138,  107  Am.  St.  Rep.  968,  3  Ann.  Cas.  201 
(1904). 

See  Missouri  Pacific  Rv.  Co.  v.  Keys^  55  Kan.  205,  40  Fac,  275,  49  Am. 
St.  Rep.  249  (1895). 

As  to  the  liability  of  a  railroad  in  case  of  extraordinary  flood  waters,  see 
O'Connell  v.  East  Tennessee,  V.  &  G.  Ry.  Co.,  87  Ga.  246,  13  S.  E.  489,  13 
L.  R.  A.  394,  27  Am.  St.  Rep.  246  (1891). 

1  Part  of  the  opinion  is  omitted.  * 


104  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part  I 

improve  and  better  the  condition  of  his  lot,  by  grading  and  filHng  up 
the  lot  and  sidewalk  in  front  of  it,  about  twelve  indies,  and  on  a  sub- 
sequent occasion  he  filled  in  several  inches  more ;  that  in  the  spring  of 
1875  there  was  an  unusually  large  accumulation  of  water  from  melting 
snow  ariid  rains  in  front  of  and  about  the  plaintiff's  premises,  so  that 
the  water  ran  into  the  cellar  of  his  house  and  occasioned  serious  dam- 
age ;  that  the  filling  in  of  the  defendant's  lot  had  the  effect  to  increase 
the  accumulation  of  water  on  the  plaintiff's  lot,  and  contributed  to  the 
injury  to  his  property. 

There  was  no  natural  water  course  over  the  defendant's  lot.  The 
surface  water,  by  reason  of  the  natural  features  of  the  ground,  and  the 
force  of  gravity,  when  it  accumulated  beyond  a  certain  amount  in  front 
of  the  plaintiff's  lot,  passed  upon  and  over  the  lot  of  the  defendant. 
The  discharge  was  not  constant  or  usual,  but  occasional  only.  There 
was  no  channel  or  stream  in  the  usual  sense  of  those  terms.  In  an  un- 
dulating country  there  must  always  be  valleys  and  depressions,  to  which 
water,  from  rains  or  snow,  will  find  its  way  from  the  hill-sides  and  be 
finally  discharged  into  some  natural  outlet.  But  this  does  not  consti- 
tute such  valleys  or  depressions  water  courses.  Whether,  when  the 
premises  of  adjoining  owners  are  so  situated  that  surface  water  falling 
upon  one  tenement  naturally  descends  to  and  passes  over  the  other, 
the  incidents  of  a  water  course  apply  to  and  govern  the  rights  of  the 
respective  parties  so  that  the  owner  of  the  lower  tenement  may  not, 
even  in  good  faith  and  for  the  purpose  of  improving  or  building  upon 
his  own  land,  obstruct  the  flow  of  such  water  to  the  injury  of  the  own- 
er above,  is  the  question  to  be  determined  in  this  case. 

This  question  does  not  seem  to  have  been  authoritatively  decided  in 
this  state.  It  was  referred  to  by  Denio,  Ch.  J.,  in  Goodale  v.  Tuttle, 
29  N.  Y.  467,  where  he  said :  "And  in  respect  to  the  running  off  of 
surface  water  caused  by  rain  or  snow  I  know  of  no  principle  which  will 
prevent  the  owner  of  land  from  filling  up  the  wet  and  marshy  places  on 
his  own  soil,  for  its  amelioration  and  his  own  advantage,  because  his 
neighbor's  land  is  so  situated  as  to  be  incommoded  by  it.  Such  a  doc- 
trine would  militate  against  the  well-settled  rule  that  the  owner  of  land 
has  full  dominion  over  the  whole  space  above  and  below  the  surface." 
The  case  in  which  these  observations  were  made  did  not  call  for  the 
decision  of  the  question,  but  they  show  the  opinion  of  a  great  judge 
upon  the  point  now  in  judgment.  Similar  views  have  been  expressed 
in  subsequent  cases  in  this  court,  although  in  none  of  them  it  seems 
was  the  question  before  the  court  for  decision.  Vanderwiele  v.  Taylor, 
65  N.  Y.  341 ;  Lynch  v.  Mayor,  76  N.  Y.  60,  32  Am.  Rep.  271. 

The  question  has  been  considered  by  courts  in  other  states,  and  has 
been  decided  in  different  ways.  In  some,  the  doctrine  of  the  civil  law, 
has  been  adopted  as  the  rule  of  decision.  By  that  law,  the  right  of 
drainage  of  surface  waters,  as  between  owners  of  adjacent  lands,  of 
different  elevations,  is  governed  by  the  law  of  nature.  The  lower  pro- 
pfietor  is  bound  to  receive  the  waters  which  naturally  flow  from  the 


Ch.  5)  SURFACE   WATERS  105 

estate  above,  provided  the  industry  of  man  has  not  created  or  increased 
the  servitude.  Corp.  Jur.  Civ.  39,  tit.  3,  §§  2,  3,  4,  5 ;  Domat  (Cush. 
Ed.),  616;  Code  Napoleon,  art.  640;  Code  Louisiana,  art.  656.  The 
courts  of  Pennsylvania,  Illinois,  California  and  Louisiana  have  adopted 
this  rule,  and  it  has  been  referred  to  with  approval  by  the  courts  of 
Ohio  and  Missouri.  Martin  v.  Riddle,  26 .Pa.  415,  note;  Kauffnian  v. 
Griesemer,  id.  407,  67  Am.  Dec.  437 ;  Gillham  v.  Madison  Co.  R.  Co.,- 
49  111.  484,  95  Am.  Dec.  627;  Gormley  v.  Sanford,  52  111.  158;  Ogburn 
V.  Connor,  46  Cal.  346,  13  Am.  Rep.  213;  Delahoussaye  v.  Judice,  13 
La.  Ann.  587,  71  Am.  Dec.  521 ;  Hays  v.  Hays,  19  La.  351 ;  Butler  v. 
Peck,  16  Ohio  St.  335,  88  Am.  Dec.  452 ;  Laumier  v.  Francis,  23  Mo. 
181.  On  the  other  hand,  the  courts  of  Massachusetts,  New  Jersey, 
New  Hampshire  and  Wisconsin  have  rejected  the  doctrine  of  the  civil 
law,  and  hold  that  the  relation  of  dominant  and  servient  tenements  does 
not  by  the  common  law  apply  between  adjoining  lands  of  different  own- 
ers, so  as  to  give  the  upper  proprietor  the  legal  right,  as  an  incident  of 
his  estate,  to  have  the  surface  water  falling  on  his  land,  discharged 
over  the  land  of  the  lower  proprietor,  although  it  naturally  finds  its 
way  there;  and  that  the  lower  proprietor  may  lawfully,  for  the  im- 
provement of  his  estate  and  in  the  course  of  good  husbandry,  or  to 
make*  erections  thereon,  fill  up  the  low  places  on  his  land,  although  by 
so  doing  he  obstructs  or  prevents  the  surface  water  from  passing  there- 
on from  the  premises  above,  to  the  injury  of  the  upper  proprietor. 
Luther  V.  Winnisimmet  Co.,  9  Cush.  (Mass.)  171 ;  Parks  v.  Newbury- 
port,  10  Gray  (Mass.)  28;  Dickinson  v.  Worcester,  7  Allen  (Mass.) 
19 ;  Gannon  v.  Hargadon,  10  Allen  (Mass.)  106,  87  Am.  Dec.  625 ; 
Bowlsby  V.  Speer,  31  N.  J.  Law,  351,  86  Am.  Dec.  216;  Pettigrew  v. 
Evansville,  25  Wis.  223,  3  Am.  Rep.  50;  Hoyt  v.  Hudson,  ^7  Wis.  656, 
9  Am.  Rep.  473;  Swett  v.  Cutts,  50  N.  H.  439,  9  Am.  Rep.  276.  It 
may  be  observed  that  in  Pennsylvania,  house  lots  in  towns  and  cities 
seem  to  be  regarded  as  not  subject  to  the  rule  declared  in  the  other  cas- 
es in  that  state,  in  respect  to  surface  drainage.  Bentz  v.  Armstrong, 
8  Watts  &  S.  40,  42  Am.  Dec.  265.     *     *     * 

Upon  this  state  of  the  authorities,  we  are  at  liberty  to  adopt  such  rule 
on  the  subject  as  we  may  deem  jnost  consonant  with  the  demands  of 
justice,^  having  in  view  on  the  one  hand  individual  rights,  and  on  the 
other  the  interests  of  society  at  large.  Upon  consideration  of  the  ques- 
tion, we  are  of  opinion  that  the  rule  stated  by  Denio,  C.  J.,  in  Goodale 
v.  Tuttle,  is  the  one  best  adapted  to  our  condition,  and  accords  with 
pubhc  policy,  while  at  the  same  time  it  does  not  deprive  the  owner  of 
the  upper  tenement,  of  any  legal  right  of  property.  The  maxim,  aqua 
currit  et  debet  currere  ut  currere  solebat,  expresses  the  general  law 
which  governs  the  rights  of  owners  of  property  on  water  courses.  The 
owners  of  land  on  a  water  course  are  not  owners  of  the  water  which 
flows  in  it.  But  each  owner  is  entitled  by  virtue  of  his  ownership  of  the 
soil  to  the  reasonable  use  of  the  water  as  it  passes  his  premises,  for  do- 
mestic and  other  uses,  not  inconsistent  with  a  like  reasonable  use  of  the 


106  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part  1 

Stream,  by  owners  above  and  below  him.  Such  use  is  incideni  to 
his  right  of  property  in  the  soil.  But  he  cannot  divert  or  unreasonably 
obstruct  the  passage  of  the  water,  to  the  injury  of  other  proprietors. 
These  familiar  principles  are  founded  upon  the  most  obvious  dictates 
of  natural  justice  and  public  policy.  The  existence  of  streams  is  a 
permanent  provision  of  nature,  open  to  observation,  by  every  purchaser 
of  land  through  which  they  pass.  The  multiplied  uses  to  which  in  civ- 
ilized society  the  water  of  rivers  and  streams  is  applied,  and  the  wide 
injury  which  may  result  from  an  unreasonable  interference  with  the 
order  of  nature,  forbid  an  exclusive  appropriation,  by  any  individual, 
of  the  water  in  a  natural  water  course,  or  any  unreasonable  interrup- 
tion in  the  flow. 

It  is  said  that  the  same  principle  of  following  the  order  of  nature 
should  be  applied  between  coterminous  proprietors,  in  determining  the 
right  of  mere  surface  drainage.  But  it  is  to  be  observed  that  the  law 
has  always  recognized  a  wide  distinction  between  the  right  of  an  owner 
to  deal  with  surface  water  falling  or  collecting  on  his  land,  and  his 
right  in  the  water  of  a  natural  water  course.  In  such  water,  before 
it  leaves  his  land  and  becomes  part  of  a  definite  water  course,  the  own- 
er of  the  land  is  deemed  to  have  an  absolute  property,  and  he  may  ap- 
propriate it  to  his  exclusive  use,  or  get  rid  of  it  in  any  way  h'e  can, 
provided  only  that  he  does  not  cast  it  by  drains  or  ditches,  upon  the 
land  of  his  neighbor ;  and  he  may  do  this,  although  by  so  doing  he  pre- 
vents the  water  reaching  a  natural  water  course,  as  it  formerly  did, 
thereby  occasioning  injury  to  mill-owners,  or  other  proprietors  on  the 
stream.  So  also  he  may  by  digging  on  his  own  land,  intercept  the  per- 
colating waters  which  supply  his  neighbor's  spring.  Such  consequen- 
tial injury  gives  no  right  of  action.  Action  v.  Blundell,  12  M.  &  W. 
324;  Rawstron  v.  Tavlor,  11  Exch.  369;  Phelps  v.  Nowlen,  72  N.  Y. 
39,  28  Am.  Rep.  93.  ' 

Now  in  these  cases  there  is  an  interference  with  natural  laws.  But 
those  laws  are  to  be  construed  in  connection  with  social  laws  and  the 
laws  of  property.  The  interference  in  these  cases  with  natural^laws 
is  justified,  because  the  general  law  of  society  is,  that  the  owner  of  land 
has  full  dominion  over  what  is  above,  upon  or  below  the  surface,  and 
the  owner  in  doing  the  acts  supposed  is  exercising  merely  a  legal  right. 
The  owner  of  wet  and  spongy  land  cannot,  it  is  true,  by  drains  or  other 
artificial  means,  collect  the  surface  water  into  channels,  and  discharge 
it  upon  the  land  of  his  neighbor  to  his  injury.  This  is  alike  the  rule  of 
the  civil  and  common  law.  Corp.  Jur.  Civ.  39,  tit.  3,  §§  2,  3,  4,  5 ; 
Noonan  v.  Albany,  79  N.  Y.  475,  35  Am.  Rep.  540;  Miller  v.  Lau- 
bach,  47  Pa.  154,  86  Am.  Dec.  521.  But  it  does  not  follow,  we  think, 
that  the  owner  of  land,  which  is  so  situated  that  the  surface  waters 
from  the  lands  above  naturally  descend  upon  and  pass  over  it,  may  not 
in  good  faith,  and  for  the  purpose  of  building  upon  or  improving  his 
land,  fill  or  grade  it,  although  thereby  the  water  is  prevented  from 
reaching  it,  and  is  retained  upon  the  lands  above. 


Ch.  5)  SURFACE    WATERS  107 

There  is  a  manifest  distinction  between  casting  water  upon  another's 
land,  and  preventing  the  flow  of  surface  water  upon  your  own.  So- 
ciety has  an  interest  in  the  cultivation  and  improvement  of  lands,  and 
in  the  reclamation  of  waste  lands.  It  is  also  for  the  public  interest  that 
improvements  shall  be  made,  and  that  towns  and  cities  shall  be  built. 
To  adopt  the  principle  that  the  law  of  nature  must  be  observed  in  re- 
spect to  surface  drainage  would,  we  think,  place  undue  restriction  upon 
industry  and  enterprise,  and  the  control  by  an  owner  of  his  property. 
Of  course  in  some  cases  the  opposite  principle  may  cause  injury  to  the. 
upper  proprietor.  But  the  question  should,  we  think,  be  determined 
largely  upon  considerations  of  public  policy  and  general  utility.  Which 
rule  will  on  the  w^hole  best  subserve  the  public  interests,  and  is  most 
-reasonable  in  practice?  For  the  reasons  stated,  we  think  the  rule  of 
the  civil  law  should  not  be  adopted  in  this  state.  The  case  before  us 
is  an  illustration  of  the  impolicy  of  following  it.  Several  house  lots 
(substantially  village  lots)  are  crossed  by  the  depression.  They  must 
remain  unimproved  if  the  right  claimed  by  the  plaintiff  exists.  It  is  bet- 
ter we  think  to  establish  a  rule  which  will  pennit  the  reclamation  and 
improvement  of  low  and  waste  lands,  to  one  which  will  impose  upon 
them  a  perpetual  servitude,  for  the  purpose  of  drainage  for  the  benefit 
of  upper  proprietors.  We  do  not  intend  to  say  that  there  may  not  be 
cases  which,  owing  to  special  conditions  and  circumstances,  should  be 
exceptions  to  the  general  rule  declared. 

But  this  case  is  within  it,  and  we  think -the  judgment  below  should  be 
affirmed.    All  concur. 

Judgment  affirmed.* 


GORMLEY  v.  SANFORD. 

(Supreme    Court   of   Illiuois,    1S69.     52    111.   158.) 

Lawre;nce;,  J.*  This  was  an  action  on  the  case,  brought  by  San- 
ford  against  Gormley,  for^  wrongfully  obstructing  a  channel  by  which,^ 
as  claimed  by  plaintiff,  his  land  was  drained.  Sanford  owned  certain 
lots  in  block  3,  in  the  city  of  Morris,  Grundy  county,  numbered  11,  12 
and  13,  and  Gormley  owned  lots  5,  6  and  7,  in  the  same  block,  situat- 
ed south  of  Sanford's  lots,  and  separated  from  them  by  an  alley.  In 
May,  1867,  Gormley  deposited  upon  the  rear  part  of  his  lots,  near  the 

sAcc:  Gibbs  v.  Williams.  25  Kan.  214,  37  Am.  Rep.  241  (1S81) ;  Bates  v. 
Smith,  100  Mass.  181  (18GS). 

Ace,  as  to  railroad  embankments:  Walker  v.  New  Mexico  &  S.  P.  R.  R., 
165  U.  S.  593,  17  Sup.  Ct.  421,  41  L.  Ed.  837  (1897) ;  Morrison  v.  Bucksport 
&  B.  R.  R.,  67  Me.  .353  (1877).  Se6,  also,  cases  cited  in  note  to  Thompson. 
V.  New  Haven  Water  Co..  ante,  p.  102. 

A.  drained  his  land,  thereby  cutting  off  surface  water,  which  formerly- 
flowed  over  and  irrigated  B.'s  land.  Held,  B.  has  no  cause  of  action,  even 
though  his  land  is  damaged  by  the  cutting  off  of  the  water.  Rawstrom  v. 
Taylor,  11  t^xch.  .369  (18.55) ;  Broadbent  v.  Ramsbotham,  11  Exch.  002  (1856>. 

»  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


108  RIGHTS   INCIDENTAL  TO   TOSSESSION  (Part   1 

alley  a  quantity  of  earth,  which  he  had  taken  from  an  adjoining  coal 
shaft.  At  that  time  Sanford  had  upon  his  lots  a  large  number  of 
grape  vines  which  had  been  planted  two  years  before,  about  two  hun- 
dred of  which,  together  with  a  few  young  fruit  trees,  died  in  the  spring 
of  1867,  and  he  insists,  their  death  was  caused  by  the  water  thrown 
back  on  the  rear  of  his  lots  by  the  deposit  of  earth  on  Gormley's  lots, 
across  which  he  claims  a  right  of  drainage,  as  being  what  the  civil  law 
terms  the  lower  or  servient  heritage.  The  jury  found  a  verdict  for 
the  plaintiff,  allowing  Him  $1,500  damages,  and  the  defendant  appealed. 

It  is  admitted  that  the  water  which  flowed  from  Sanford's  to  Gorm- 
ley's land,  the  obstruction  of  which  is  the  basis  of  the  action,  is  wholly 
surface  water,  consisting  of  rain  which  fell  upon  the  land  itself,  or  of 
snow  falling  and  melting  there,  and  much  of  the  argument  has  been- 
addressed  to  the  question,  whether  the  same  law  in  regard  to  drain- 
age, which  applies  to  well-defined  water  courses,  is  applicable  to  cases 
of  this  character. 

This  question  has  already  been  decided  by  this  court  in  Gillham  v. 
Madison  County  R.  R.  Co.,^49  111.  484,  95  Am.  Dec.  627,  not  reported, 
and  probably  not  within  the  knowledge  of  counsel,  when  this  case  was 
argued.  In  the  opinion  filed  in  that  case,  we  said,  although  there  was 
a  conflict  of  authorities  among  the  courts  of  this  country,  yet  the  rule 
forbidding  the  owner  of  the  servient  heritage  to  obstruct  the  natural 
flow  of  surface  waters,  was  not  only  the  clear  and  well-settled  rule  of 
the  civil  law,  but  had  been  generally  adopted  in  the  common-law  courts, 
both  of  this  country  and  of  England.  Various  cases  bearing  upon  each 
side  of  the  question  are  cited  in  that  opinion,  and  it  is  not  necessary 
to  cite  them  again.  This  rule  was  thought  by  this  court,  in  that  cause, 
to  rest  upon  a  sound  basis  of  reason  and  authority,  and  was  adopted. 
We  find  nothing  in  the  argument,  or  authorities  presented  in  the  pres- 
ent case,  to  shake  our  confidence  in  the  conclusion  at  which  we  then 
arrived.  In  our  judgment,  the  reasoning  which  leads  to  the  rule  for- 
bidding the  owner  of  a  field  to  overflow  an  adjoining  field  by  obstruct- 
ing a  natural  water  course,  fed  by  remote  springs,  applies,  with  equal 
force,  to  the  obstruction  of  a  natural  channel  through  which  the  sur- 
face waters,  derived  from  the  rain  or  snow  falling  on  such  field,  arc 
wont  to  flow.  What  difference  does  it  make,  in  principle,  whether  the 
water  comes  directly  upon  the  field  from  the  clouds  above,  or  has  fallen 
upon  remote  hills,  and  comes  thence  in  a  running  stream  upon  the  sur- 
face, or  rise,s  in  a  spring  upon  tlie  upper  field  and  flows  upon  the  low- 
er? The  cases  asserting  a  dift'erent  rule  for  surface  waters  and  run- 
ning streams,  furnish  no  satisfactory  reason  for  the  distinction. 

It  is  suggested  in  the  argument,  if  the  owner  of  the  superior  heritage 
has  a  right  to  have  his  surface  waters  drain  upon  the  inferior,  it  would 
follow  that  he  must  allow  them  so  to  drain,  and  would  have  no  right 
to  use  and  exhaust  them  for  his  own  benefit,  or  to  drain  them  in  a  dif- 
ferent direction.  We  do  not  perceive  why  this  result  should  follow. 
The  right  of  the  owner  of  the  superior  heritage  to  drainage  is  based 


Ch.  5)  SURFACE    WATERS  109 

simply  on  the  principle  that  nature  has  ordained  such  drainage,  and  it 
is  but  plain  and  natural  justice  that  the  individual  ownership  arising 
from  social  laws  should  be  held  in  accordance  with  pre-existing  laws 
and  arrangements  of  nature.  As  water  must  flow,  and  some  rule  in 
regard  to  it  must  be  established  where  land  is  held  under  the  artificial 
titles  created  by  human  law,  there  can  clearly  be  no  other  rule  at  once- 
so  equitable  and  so  easy  of  application  as  that  which  enforces  natural 
laws.  There  is  no  surprise  or  hardship  in  this,  for  each  successive  own- 
er takes  with  whatever  advantages  or  inconveniences  nature  has  stamp- 
ed upon  his  land.  We  find  no  error  in  the  instructions  of  the  court 
upon  this  branch  of  the  case. 

It  is  urged,  however,  that  this  rule,  even  if  justly  applicable  to  agri- 
cultural lands,  should  not  be  applied  to  city  lots.  Where  a  city  has  es- 
tablished an  artificial  grade,  and  provided  an  artificial  sewerage,  of 
which  property  owners  can  reasonably  avail  themselves,  we  should 
probably  hold  it  their  duty  to  do  so,  and  so  the  court  substantially  in- 
structed in  the  present  case.  But  this  was  not  the  state  of  facts  in 
reference  to  this  property,  so  far  as  disclosed  by  this  record.  The  lots 
lie  in  a  very  thinly  populated  addition  tcf  the  city  of  Morris,  and  those 
belonging  to  plaintiff  were  used  for  the  purpose  of  fruit  growing,  while 
defendant  mined  coal  upon  his.^"     *     *     * 

[The  judgment  was  set  aside  upon  other  grounds.] 


YEREX  V.  EINEDER. 

(Supreme  Court  of  INIichigan,  1891.     86  Mich.  24,  48  N.  W.  875,  24  Am.  St. 

Rep.  113.) 

Morse,  J."  The  plaintifip  owns  the  E.  1/2  of  the  S.  W.  14  of  sec-, 
tion  22,  township  8  N.,  of  range  12  E.,  in  Lapeer  county.  The  defend- 
ant owns  the  W.  i/o  of  the  same  quarter,  same  section,  township,  and 
range.  It  was  claimed  by  plaintifit  that  the  water  from  the  lowlands 
of  defendant — a  marsh  or  swamp — was  diverted  from  its  natural  flow, 
and  carried  upon  the  lands  of  plaintifif,  to  his  damage,  by  means  of  a 
ditch  dug  upon  defendant's  premises.  The  action  was  commenced  in 
justice  court,  where  plaintiff  had  judgment.  Upon  appeal  to  the  cir- 
cuit court,  verdict  and  judgment  passed  for  the  defendant.  The  plain- 
tiff brings  error. 

The  testimony  showed  that  the  swamp  on  defendant's  land  was  a 
part  or  neck  of  a  large  swamp,  which  contained  over  300  acres.    The 

10 Ace:  Farkas  v.  Towns,  103  Ga.  150,  29  S.  E.  700,  68  Am.  St.  Rep.  88 
(1897) ;  Boyd  v.  Conklin,  54  Mich.  583,  20  N.  W.  595,  52  Am.  Rep.  831  (1884) ; 
Garland  v.  Aurin,  103  Tenn.  555,  53  S.  W.  940,  48  L.  R.  A.  862,  76  Am.  St. 
Rep.  699  (1899). 

Compare  Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Chapman,  39  Ark.  463,  43  Am. 
Rep.  280  (1882),  and  Morrissey  v.  Chicago,  B.  &  Q.  R.  Co.,  38  Neb.  406,  56 
N.  W.  946,  57  N.  W.  522  (1893). 

11  Part  of  the  opinion  is  omitted. 


110*  RIGHTS  INCIDENTAL,  TO   POSSESSION  (Part   1 

natural  outlet  of  this  swamp  was  into  L-ittle  brook,  and  from  thence 
into  Mill  creek,  away  from  plaintiff's  land.  The  testimony  on  the  part 
of  the  plaintiff  was  to  the  effect  that,  although  the  neck  of  the  swamp 
upon  defendant's  land  came  within  about  20  rods  of  his  premises,  there 
was  a  ridge  between  such  premises  and  the  swamp,  which,  in  the  ab- 
sence of  the  ditch,  prevented  any  water  from  the  swamp  overflowing, 
even  in  times  of  high  water,  upon  plaintiff's  land.  After  passing  this 
ridge,  the  land  of  defendant  sloped  towards  plaintift''s  land,  which, 
adjoining  defendant's  premises,  was  lower  than  the  land  of  defendant. 
It  was  conclusively  shown  that  there  was  never  any  natural  water 
course,  with  defined  banks,  running  from  the  swamp  to  plaintiff's 
land.     *     *     * 

The  defendant  introduced  testimony  tending  to  show  that,  m  a  state 
of  nature,  the  water  from  the  neck  of  this  swamp  flowed  upon  plain- 
tiff's land,  especially  in  seasons  of  high  water ;  that  the  defendant  built 
a  dam  at  the  lowest  place  in  the  swamp,  where  this  water  ran  towards 
plaintiff's  land,  which  confined  the  waters  more  closely  to  the  swamp ; 
that  the  ditch  did  not  quite  come  up  to  this  dam,  and  that  the  water 
which  ran  into  the  ditch  flowed  around  the  dam,  and  thus  reached  the 
ditch ;  and  that  no  more  water  went  upon  plaintiff's  premises  from  the 
swamp,  with  the  dam  and  ditch  in  existence,  than  flowed  there  before 
without  them ;  and  some  of  the  witnesses  testified  that  the  quantity  of 
water  reaching  plaintiff's  land  was  less  than  it  would  have  been"  had  not 
the  dam  and  ditch  been  constructed.  But  there  was  no  testimony  disput- 
ing the  fact  that  this  ditch  collected  the  water,  and  precipitated  it  upon 
plaintiff"  in  such  a  manner  that  it  prevented  a  large  amount  of  it  from 
soaking  into  or  spreading  out  over  defendant's  land,  when  without  the 
ditch  the  water  could  not  reach  plaintift"'s  premises,  except  as  it  did 
so  by  spreading  out  and  overflowing  defendant's  land,  and"  until  by  such 
spreading  and  overflow  it  reached  the  land  of  plaintiff.  In  other  words, 
it  is  practically  undisputed  in  the  record  that  the  digging  of  this  ditch 
carried  the  water  from  tliis  swamp  in  a  different  and  unusual  manner 
from  which  it  possibly  could  have  reached  it  naturally,  and  that  the 
water  thus  thrown  upon  it  damaged  his  land,  while  it  reclaimed  some 
of  defendant's.  The  defendant  testified  that  he  made  the  ditch  in  the 
first  place  so  that  he  would  be  enabled  to  work  the  rest  of  the  place  to 
cultivate  it.  "Until  I  made  the  ditch,  I  could  not  work  it.  The  ditch 
kept  the  water  together,  so  that  I  could  get  a  chance  to  work  the  rest 
of  the  land."  "I  couldn't  work  it  till  I  cut  the  ditch,  because  it  would 
overflow  the  whole  place.  *  *  *  Question.  After  that  ditch  was 
dug,  wouldn't  it  take  the  water  from  the  overflow  of  the  swamp  at 
once  onto  Yerex's  land,  and  prevent  it  from  overflowing  on  your  land, 
and  soaking  him?  Answer.  Yes,  sir.  Q.  And  that  was  the  object  of 
digging  the  ditch,  wasn't  it,  on  your  part  ?  A.  Yes ;  that  was  the  ob- 
ject on  my  part." 

Such  being  the  record,  it  was  error  to  permit  the  defendant  to  show 
that  the  digging  of  this  ditch  was  an  act  of  good  husbandry.    The  de- 


Ch.  5)  SURFACE    WATERS  111 

fendant,  as  said  in  Gregory  v.  Bush,  64  Mich.  42,  31  N.  W.  90,'  8  Am. 
St.  Rep.  797,  could  not,  "by  artificial  drains  or  ditches,  collect  the  wa- 
ters of  stagnant  pools,  sagholes,  basins,  or  ponds  upon  his  premises, 
and  cast  them  in  a  body  upon  the  proprietor  below  him,  to  his  injury." 
And  he  could  not  reclaim  his  land  by  transferring  the  overflow  from 
his  land  to  that  of  plaintiff's.  "He  could  not  collect  and  concentrate 
such  waters,  and  pour  them  in  an  artificial  ditch,  in  unusual  quanti- 
ties, upon  his  adjacent  proprietor."  Id.,  64  Mich.  44,  31  N.  W.  94,  8 
Am.  St.  Rep.  797.  What  the  defendant  did,  by  his  own  showing,  was 
to  transfer  his  wet  and  untillable  land  to  his  neighbor  by  the  digging  of 
an  artificial  ditch,  and  carrying  the  water  at  once  upon  plaintiff's  land, 
so  that  it  would  not  overflow  or  percolate  his  own  soil.  This  he  had  no 
right  to  do  under  any  circumstances,  and  whether  or  not  it  was  good 
husbandry  upon  his  part  to  do  so  was  entirely  immaterial.  We  are  at 
a  loss  to  understand  how  the  jury,  under  the  evidence  and  charge  of 
the  court,  which  was  mainly  correct,  could  have  found  for  the  defend- 
ant, unless  they  were  prejudiced  by  the  admission  of  this  testimony, 
which  had  no  business  in  the  case. 

The  court,  we  also  think,  should  have  given  the  plaintiff's  second 
request,  as  follows :  "(2)  From  the  undisputed  evidence  in  this  case, 
the  fact  has  been  established  that,  by  means  of  the  dead  furrow  and 
ditch  constructed  by  defendant,  the  water  has  been  prevented  from 
percolating  through  and  settling  in  the  lowlands  of  defendant  next  to 
the  swamp,  and  has  been  caused  to  flow  through  the  dead  furrow  and 
ditch  onto  plaintiff's  lands  in  quantities  at  times  greater  than  it  would 
have  flowed  on  plaintift''s  lands  if  there  were  no  ditch  oi*  dead  furrow, 
and  that  said  plaintiff'  was  damaged  thereby,  and  your  verdict,  there- 
fore, will  be  for  the  plaintiff." 

The  judgment  is  reversed,  and  a  new  trial  granted,  with  costs  of  this 
court  to  plaintiff.    The  other  justices  concurred."     jpr.    '■-.  \a^. 


MANTEUFEL  v.  WETZEL. 

(Supreme  Court  of  Wisconsin,  1907.     133  Wis.  619,  114  N.  W.  91,  19  L.  R.  A. 

[N.  S.]  167.) 

Timlin,  J.^^  Only  one  question  is  necessary  to  be  considered.  It 
is  established  by  the  findings  that  the  parties  own  adjoining  lands. 
There  is  on  the  defendant's  land  and  about  700  feet  west  of  the  plain- 
tiff's land  a  sink  hole,  or  depression,  which  in  wet  seasons  and  before 
the  construction  of  the  ancient  ditch  contained  about  three  acres  of 

i2Acc.:  Livingston  v.  McDonald,  21  Iowa,  160,  89  Am.  Dec.  563  (1866); 
Miller  v.  Laubach,  47  Pa.  154,  86  Am.  Dec.  521  (1864).  A  fortiori  is  such 
ttirowins  of£  of  surface  water  actionable  when  there  is  no  natural  drainage 
to  the  plaintiff's  land.  Schuster  v.  Albrecht,  9S  Wis.  241,  73  N.  W.  990,  67 
Am.  St.  Rep.  804   (1898). 

13  Part  of  the  opinion  is  omitted. 


/  ^f  (i^e  7^17 


11125  .  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part  1 

water  of  the  average  depth  of  li/^  feet,  and  between  this  sink  hole  or 
depression  and  the  land  of  the  plaintiff  there  is  upon  the  land  of  the  de- 
fendant at  a  point  distant  from  the  common  boundary  an  elevation  of 
about  three  feet.  More  than  20  years  prior  to  the  commencement 
of  this  action  the  predecessor  in  title  of  the  defendant  cut  through  this 
elevation  by  a  ditch,  so  that  the  surface  water  which  formerly  collected 
in  such  depression  passed  through  said  ditch  and  to  a  point  upon  de- 
fendant's land  about  150  feet  west  of  the  common  boundary,  where 
it  spread  over  defendant's  land  and  escaped  by  the  natural  course  of 
surface  water  on  to  the  land  of  the  plaintiff.  The  said  sink  hole  or 
depression  is  a  natural  basin  or  reservoir  without  natural  outlet  which 
is  capable  of  holding,  and  which,  in  fact,  did  collect,  receive,  and  hold, 
large  quantities  of  surface  water  which  fell  and  gathered  upon  lands 
of  the  defendant  and  adjacent  land  in  the  vicinity  of  said  depression, 
and  the  surface  water  so  collected  remained  standing  in  said  depression 
until  the  same  disappeared  by  evaporation,  absorption  by  the  earth,  or 
was  removed  therefrom  by  means  of  said  ancient  ditch  or  artificial  out- 
let to  the  point  aforesaid  upon  the  defendant's  land.  In  May,  1904, 
the  defendant,  following  the  natural  course  of  the  surface  water. 
excavated  on  his  own  land  a  shallow  ditch  from  the  termination  of  said 
ancient  ditch  to  the  common  boundary  between  plaintiff  and  defendant, 
and,  as  a  direct  result  thereof,  the  surface  water  from  said  depression 
has  passed  through  the  ancient  ditch  and  through  the  extension  there- 
of just  mentioned  to  the  plaintift''s  land,  and  has  been  deposited  on  the 
plaintiff's  land  in  greater  quantities  and  with  much  greater  rapidity 
and  force  tharr  before,  and  has  thereby  rendered  about  four  or  five  acres 
of  the  plaintiff's  land  too  wet  for  ordinary  use  as  agricultural  land,  and 
of  less  value  than  formerly,  and  in  the  year  1904  caused  a  washout 
upon  the  lands  of  the  plaintiff  of  about  45  feet  in  length  by  7  feet  in 
width,  and  3  feet  in  depth.  Upon  these  facts,  the  court  below  held 
that  the  ancient  ditch  extending  from  the  sink  hole  or  depression  on 
defendant's  land  to  a  point  on  defendant's  land  about  150  feet  from 
the  common  boundary  should  be  allowed  to  be  and  remain  as  it  was, 
apparently  upon  the  ground  that  this  outlet  had  been  maintained  more 
than  20  years  prior  to  the  commencement  of  the  action.  That  ruling 
is  not  excepted  to,  and  is  not  before  us  for  review.  But  the  court  de- 
creed on  these  facts  that  the  plaintiff  recover  $100,  and  that  the  de- 
fendant be  ordered  to  close  and  ffll  up  the  extension  of  ditch  above  de- 
scribed made  by  him  in  May,  1904,  and  thereafter  to  keep, the  same 
closed. 

We  have  considered  the  cases,  *  *  *  and  do  here  determine  that 
where  the  upper  proprietor  does  no  more  than  collect  in  a  ditch,  which 
ditch  follows  the  course  of  the  usual  flow  of  surface  water,  the  sur- 
face water  which  formerly  took  the  same  course  toward  the  land  of  the 
lower  adjacent  proprietor,  and  causes  to  pass  through  this  ditch  the 
surface  water  which  formerly  took  the  same  course  but  spread  out  over 
the  surface,  he  has  committed  no  actionable  legal  wrong  of  which  the 


Ch.  O)  SURFACE   WATERS  113 

lower  proprietor  can  complain,  or  upon  which  such  lower  proprietor 
can  maintain  an  action.  In  other  words,  causing  surface  water  to  flow 
in  its  natural  direction  through  a  ditch  on  one's  own  land  instead  of 
over  the  surface  or  by  percolation  as  formerly,  where  no  new  water- 
shed is  tapped  by  said  ditch  and  no  addition  to  the  former  volume  of 
surface  water  is  caused  thereby,  except  the  mere  carrying  in  a  ditch 
what  formerly  reached  the  same  point  on  defendant's  land  over  a  wider 
surface  by  percolation  through  the  soil  or  by  'flowing  over  such  wider 
surface,  is  not,  when  not  negligently  done,  a  wrongful  or  unlawful  act. 
It  follows  that,  upon  the  findings  of  fact  of  the  court  below,  the  con- 
clusion of  law  should  have  been  that  the  defendant  was  entitled  to  judg- 
ment dismissing, the  complaint  and  judgment  accordingly. 

The  judgment  of  the  circuit  court  is  reversed,  and  the  cause  re- 
manded, with  directions  to  enter  judgment  for  the  defendant  dismiss- 
ing the  plaintiff's  complaint.^* 


i^Acc:  Hushes  v.  Anderson,  68  Ala.  280,  44  Am.  Kep.  147  (1880).  See 
Jessup  V.  Bamford,  66  N.  J.  Law,  641.  51  Atl.  147,  58  L.  R.  A.  329,  88  Am.  St. 
Rep.  502   (1901). 

Peck  and  Herrington  owned  adjacent  farms.  There  was  a  natural  depres- 
sion leading  through  Peck's  farm  across  Herrington's  farm  to  a  river.  Sur- 
face water  and  the  spring  overflow  from  three  small  surface  water  ponds 
on  Peck's  farm  worked  off  down  this  depression.  Peck  put  in  a  loose  tile 
drain  from  these  ponds  all  the  way  down  the  depression  to  the  boundary 
of  Herrington's  farm.  As  a  result,  the  ponds  were  drained  and  the  amount 
of  water  flowing  through  the  depression  on  Herrington's  farm  was  greatly 
increased.  The  court  held  that  Herrington  had  no  cause  of  action  against 
Peck,  saying:  "It  may  be  true  that  the  owner  of  a  tract  of  land  would  have 
no  right  to  drain  a  lake  or  large  body  of  water  upon  the  land  of  an  adjoin- 
ing owner,  and  thus  destroy  it;  but  such  is  not  this  case.  These  small 
ponds  rendered  much  of  the  land  of  Peck  unfit  for  cultivation,  and  good 
husbandry  required  that  they  should  be  drained,  and  so  long  as  the  water 
was  discharged  in  the  regular  channel  leading  from  the  land  of  Peck  to  that 
of  Herrington,  he  has  no  legal  ground  of  complaint.  The  natural  flow  of 
the  surface  water  was  not  changed  by  the  drainage.  It  may  have  been  in- 
creased, but  such  increase  of  water  was  a  burden  which  the  location  of  the 
two  tracts  of  land  demanded  should  be  borne  by  the  owner  of  the  lower 
tract  of  land.  As  was  said  in  Kauffman  v.  Griesemer,  supra:  'Because 
water  is  descendible  by  nature,  the  owner  of  a  dominant  or  superior  herit- 
age has  an  easement  in  the  servient  or  inferior  tenement  for  the  discharge 
of  all  waters  which  by  nature  rise  in,  or  flow  or  fall  upon,  the  superior.' " 
Peck  V.  Herrington,  109  111.  611,  620.  50  Am.  Rep.  627  (1S84).  Ace:  Todd 
V.  York  County,  72  Neb.  207.  100  N.  W.  299.  66  L.  R.  A.  561  (1904).  Com- 
pare: Jacobson  v.  Van  Boening.  48  Neb.  80.  66  N.  W.  993,  32  L.  R.  A.  229. 
58  Am.  St.  Rep.  684  (1896) ;  Waffle  v.  New  York  Cent.  R.  R.,  53  N.  Y.  11,  13 
Am.  Rep.  467  (1873) ;  Butler  v.  Peck,  16  Ohio  St.  334,  88  Am.  Dec.  452  (1865). 

A.,  B.,  and  C.  owned  three  adjoining  pieces  of  land;  the  general  slope  anc' 
the  run  of  the  surface  water  was  from  A.  to  C.  C.  constructed  a  ditch  on 
his  land  to  carry  off  the  surface  water.  As  a  result,  the  course  of  the 
water  over  A.'s  land  was  so  accelerated  that  it  damaged  his  land  by  washing 
away  the  soil.  Held,  admitting  the  rule  to  be  that  the  lower  owner  is  un- 
der an  obligation  to  receive  the  natural  flow  from  the  upper,  A.  has  no  cause 
of  action  against  C.  Pohlman  v.  Chicago.  M.  &  St.  P.  R.  R.,  131' Iowa,  89, 
107  N;  W.  1025,  6  L.  R.  A.   (N.  S.)  146  (1900). 

A  surface  water  pond  of  25  to  40  acres  with  a  maximum  depth  of  3 
feet  stood  partly  on  the  land  of  A.  and  partly  on  that  of  B.  The  pond  had 
BiG.RiariTS — S 


114  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part    I 

BOWLSBY  V.  SPEER. 

(Supreme  Court  of  New  Jersey,  1S65.     31  N.  J.  Law,  351,  86  Am.  Dec.  21t).) 

This  action  was  brought  for  diverting  a  water  course  from  its  bed 
into  the  lands  of  the  plaintiff.  The  circumstances  as  they  appeared  on 
the  trial  were  these,  viz.,:  There  was  a  pond  on  the  side  of  a  hill,  and 
below  this  pond  was  the  stable  lot  of  the  defendant,  and  still  lower 
down  was  the  lot  and  dwelling  house  of  the  plaintiff.  The  pond  was 
not  fed  by  a  spring  nor  from  any  subterranean  source,  but  was  formed 
altogether  from  rains  and  melting  snows,  and  occasionally  it  was  en- 
tirely dry — never  ran  over  except  in  times  of  heavy  showers,  and  then 
with  the  other  surface  water  falling  on  the  contiguous  land,  it  passed 
down  in  a  slight  hollow  or  depression  over  the  premises  of  the  defend- 
ant, and  so  on  to  other  lands  below  them.  This  water,  in  its  natural 
condition,  did  not  go  upon  tlie  lot  of  the  plaintiff'.  The  defendant,  a 
short  time  before  the  commencement  of  this  suit,  built  a  stable  on  his 
lot,  and  located  it  over  this  hollow,  through  which  the  water  before 
mentioned  was  discharged,  and  this  obstacle  turned  the  course  of  the 
water,  so  that  it  ran  on  to  the  lot  and  into  the  cellar  of  the.  dwelling 
house  of  tlie  plaintiff.  For  the  damage  thus  occasioned  this  suit  is 
brought.  The  questions  involved  came  before  this  court  on  a  motion 
for  a  new  trial. 

BeaslEy,  C.  J.^^  It  is  not  one  of  the  legal  rights  appertaining  to 
land  that  the  water  falling  upon  it  from  the  clouds  shall  be  discharg- 
ed over  land  contiguous  to  it;  and  this  is  the  law,  no  matter  what  the 
conformation  of  the  face  of  the, country  may  be,  and  altogether  with- 
out reference  to  the  fact,  that  in  the  natural  condition  of  things,  the  sur- 
face water  would  escape  in  any  given  direction."  The  consequence  is, 
therefore,  that  there  is  no  such  thing  known  to  the  law  as  a  right  to 
any  particular  flow  of  surface  water,  jure  naturae.  The  owner  of  land 
may,  at  his  pleasure,  withhold  the  water  falling  on  his  property  from 
passing  in  its  natural  course  on  to  that  of  his  neighbor,  and  in  the  same 
manner  may  prevent  the  water  falling  on  the  land  of  the  latter  from 
coming  on  to  his  own.  In  a  word,  neither  the  right  to  discharge  nor 
to  receive  the  surface  water,  can  have  any  legal  existence  except  from 
a  grant,  express  or  implied.    The  wisdom  of  this  doctrine  will  be  ap- 


'  no  natural  outlet.  A  few  rods  from  the  pond  and  on  A.'s  land  beg;an  a  natu- 
ral depression,  which  continued  over  C.'s  land  to  a  creek.  A.  dug  a  ditch 
from  the  pond  to  the  depression,  thereby  discharging  all  the  water  over 
C.'s  land  and  rendering  the  depression  untillable.  The  lowest  point  in  the 
bank  of  the  pond  was  on  a  side  other  than  that  where  the  ditch  was  cut. 
Held,  C.  has  no  riijht  of  action  against  A.  Aldritt  v.  Fleischauer,  74  Neb. 
66.  103  N.  W.  1084,  70  L.  R.  A.  301  (1905).  Ace:  Sheehan  v.  Flynn,  59 
Minn.  436,  61  N.  W.  462,  26  L.  R.  A.  632  (1894). 
15  Part  of  the  opinion  is  omitted. 


Ch.  5)  SURFACE    WATERS  115 

parent  to  all  minds  upon  very  little  reflection.  If  the  right  to  run  in 
its  natural  channels  was  annexed  to  surface  water  as  a  legal  incident, 
the  difficulties  would  be  infinite  indeed ;  unless  the  land  should  be  left 
idle  it  would  be  impossible  to  enforce  the  right  in  its  rigor;  for  it  is 
obvious  every  house  that  is  built  and  every  furrow  that  is  made  .in  a 
field,  is  a  disturbance  of  such  right.  If  such  a  doctrine  prevailed,  every 
acclivity  would  be  and  remain  a  water  shed,  and  most  low  ground  be- 
come reservoirs.  It  is  certain  that  any  other  doctrine  but  that  which 
the  law  has  adopted,  would  be  altogether  impracticable. 

This  subject,  until  a  comparatively  recent  date,  does  not  appear  to 
have  received  the  attention  of  the  courts.  No  ancient  authority  can, 
therefore,  perhaps  be  produced,  but  the  topic  has  of  late  been  discussed 
both  by  the  Barons  of  the  Exchequer  and  by  the  courts  of  Massachu- 
setts, and  the  doctrine  placed  upon  a  footing  which,  as  it  seems  to  me, 
should  receive  the  assent  of  all  persons.  Upon  an  examination  of  these 
cases,  it  will  be  found  that  the  conclusion  is  reached  that  no  right  of 
any  kind  can  be  claimed  in  the  mere  flow  of  surface  water,  and  that 
neither  its  retention,  diversion,  repulsion,  or  altered  transmission  is 
an  actionable  injury,  even  though  damage  ensues.  How  far  it  may  be 
necessary  to  modify  this  general  proposition  in  cases  in  which,  in  a 
hilly  region,  from  the  natural  formation  of  the  surface  of  the  ground, 
large  quantities  of  water,  in  times  of  excessive  rains  or  from  the  melt- 
ing of  heavy  snows,  are  forced  to  seek  a  channel  through  gorges  or 
narrow  valleys,  will  probably  require  consideration  when  the  facts  of 
the  case  shall  present  the  question.  It  would  seem  that  such  anomalous 
cases  might  reasonably  be  regarded  as  forming  exceptions  to  the  gen- 
eral rule.     *     *     * 

Applying,  then,  the  doctrine  above  indicated  to  the  facts  of  the  pres- 
ent case,  the  conclusion  must  be  that  upon  the  proof  made  at  the  trial, 
the  plaintiff  was  not  entitled  to  recover.  The  water  diverted  by  the 
building  of  the  defendant  was  altogether  surface  water,  and  he,  there- 
fore, had  a  legal  right  to  obstruct  and  to  turn  aside  its  course.  If  the 
plaintiff'  has  suffered  from  such  act  it  is  damnum  absque  injuria.  Nor 
is  her  case  helped  by  the  circumstance  that  a  portion  of  the  water  in 
question  came  from  the  pond  which  was  proved  to  exist,  because  no 
more  waste  water  was  discharged  by  reason  of  this  reversion  than  there 
would  have  been  if  it  had  not  been  there.  It  was  merely  the  rain  wa- 
ter flowing  from  surface  of  the  pond,  as  it  would  have  done  if  the 
superficies  had  been  land  instead  of  water.  Nor  does  it  seem  to  me 
that  there  is  any  significance  in  the  fact,  that  there  was  an  appreciable 
channel  for  this  surface  water  over  the  land  of  the  defendant  and  into 
which  it  naturally  ran.  "  On  every  hill  side  numbers  of  such  small  con- 
duits can  be  found,  but  it  would  be  highly  unreasonable  to  attach  to 
them  all  the  legal  qualities  of  water  courses.  I  am  not  willing  to  adopt 
a  doctrine  which  would  be  accompanied  with  so  much  mischief. 

In  my  opinion  the  existence  of  a  water  course  was  not  proved  in  the 


116  RIGHTS  INCIDENTAL  TO   POSSESSION  \Tart   1 

present  case,  and  as  this  is  the  ground  work  of  the  plaintiffs  action,  I 
think  a  new  trial  should  be  granted. 
Rule  made  absolute?^* 


HURDMAN  V.  NORTH  EASTERN  RY.  CO. 

(Court  of  Appeal,  187S.     L.  R.  3  C.  P.  D.  16S.) 

Appeal  from  the  judgment  of  Manisty,  J.,  in  favour  of  the  plaintiff 
on  demurrer  to  a  statement  of  claim. 

Claim :  At  the  time  of  the  damage  hereafter  mentioned  the  plaintiff 
was,  and  is  still,  possessed  of  a  house,  No.  16,  Lodge  Terrace,  Sunder- 
land. 

2.  The  defendants  then  were,  and  still  are,  possessed  of  a  certain 
close  of  land  adjoining  the  house  of  the  plaintiff. 

3.  The  defendants  placed  and  deposited  in  and  upon  the  close  of  the 
defendants,  and  upon  and  against  a  wall  of  the  defendants  which  ad- 
joins and  abuts  against  the  house  of  the  plaintiff,  large  quantities  of 
soil,  clay,  limestone,  and -other  refuse,  close  to  and  adjoining  the  house 
of  the  plaintiff",  and  thereby  raised  the  surface  of  the  defendants'  land 
above  the  level  of  the  land  upon  which  the  plaintiff's  house  was  built. 

4.  The  rain  which  fell  upon  the  soil,  clay,  limestone,  and  other  refuse 
so  placed  as  aforesaid  oozed  and  percolated  through  the  wall  of  the  de- 
fendants into  the  house  of  the  plaintiff',  and  the  plaintift''s  house  there- 
by became  wet,  damp,  unwholesome  and  unhealthy,  and  less  commodi- 
ous -for  habitation. 

5.  By  reason  of  the  acts  of  the  defendants  the  walls  of  the  house  of 
the  plaintiff  became  and  were  very  much  injured,  and  the  paper  upon 
the  walls  has  been  destroyed. 

6.  In  the  alternative  the  plaintiff  alleges  that  the  defendants  negli- 
gently and  improperly  placed  and  deposited  the  soil,  clay,  limestone, 
and  refuse  upon  the  defendants'  land,  and  that  the  rain  water  falling 
thereon  oozed  and  percolated  through  and  into  the  plaintiff's  house, 
whereby  the  plaintiff's  house  was  damaged  as  before  mentioned. 

7.  In  the  alternative  the  plaintiff'  alleges  that  the  defendants  were 
guilty  of  negligence  in  this,  that  the  wall  of  the  defendants  against 
which  the  defendants  so  placed  the  soil,  clay,  limestone,  and  refuse  was 
not  sufficiently  and  properly  constructed  and  built  so  as  to  prevent  the 

isAcc:  Gannon  v.  Hargadon,  10  Allen  (Mass.)  106,  87  Am.  Dec.  625  (1865); 
Contra:  (Semble)  Adams  v.  Walker,  34  Conn.  466,  91  Am.  Dec.  742  (1867) ; 
Rhoads  v.  Davidlieiser,  133  Pa.  226,  19  Atl.  400,  19  Am.  St.  Rep.  630  (1890). 
See  Mayor  v.  Sikes,  94  Ga.  30,  20  S.  E.  257,  26  L.  R.  A.  653,  47  Am.  St.  Rep. 
132  (1894). 

Compare:  Cedar  Falls  v.  Hansen,  104  Iowa,  1S9,  73  N.  W.  585,  65  Am. 
St.  Rep.  439  (1897),  and  Waverly  v.  Page,  105  Iowa,  225,  74  N.  W.  938.  40 
L.  R.  A.  405  (1898). 


Ch.  5)  SURFACE    WATERS  117 

water  from  falling  upon  the  soil,  clay,  limestone,  and  refuse  from 
oozing  and  percolating  through  the  wall  and  into  the  plaintiff's  house, 
and  that  the  defendants  were  guilty  of  negligence  in  placing  the  soil, 
clay,  limestone,  and  refuse  against  the  wall  being  so  insufficient  to  pre- 
vent the  water  falling  upon  the  soil,  clay,  limestone,  and  refuse  from 
oozitig  and  percolating  through  and  into  the  plaintiff's  house,  whereby 
the  plaintiff's  house  was  damaged. 

Demurrer  to  the  claim,  on  the  ground  that  the  acts,  matters,  and 
things  alleged  to  have  been  done  by  the  defendants  do  not  give  rise  to 
any  right  of  action  on  the  part  of  the  plaintiff. 

The  judgment  of  the  Court  (BramwiJll,  Bri^tt,  and  Cotton,  L. 
JJ.)  was  delivered  by 

Cotton,  L.  J.  In  this  case  the  plaintiff  has  brought  an  action  for 
injury  alleged  to  have  been  caused  to  his  house,  which  abuts  on  a  wall 
of  the  defendants,  by  certain  acts  done  by  the  defendants  on  their  own 
land.  The  question  is  raised  on  demurrer  to  the  statement  of  claim, 
and  the  question  therefore  is  whether  that  alleges  a  good  cause  of  ac- 
tion. [The  Lord  Justice  read  the  statement  of  claim,  except  paragraph 
7.]  It  is  unnecessary  to  read  the  seventh  paragraph,  because  it  is  bas- 
ed on  a  supposed  obligation  of  the  railway  company  to  make  their  wall 
water-tight,  but  in  our  opinion  there  is  no  such  obligation,  and  if  the 
statements  contained  in  the  preceding  paragraphs  do  not  shew  a  cause 
of  action,  the  statements  of  the  seventh  paragraph  do  not  enable  the 
plaintiff  to  sustain  this  action. 

For  the  purposes  of  our  decision,  we  must  assume  that  the  plaintiff' 
has  sustained  substantial  damage,  and  we  must  construe  the  statement 
as  alleginglhaFthe  surface  of  The  defendants'  land  has  been  raised  by 
earth  and  rubbish  placed  thereon,  and  that  the  consequence  of  this  is 
that  rain-water  falling  on  the  defendants'  land  has  made  its  way 
through  defendants'  wall  into  the  house  of  the  plaintiff',  and  has  caus- 
ed the  injury  complained  of.  The  question  is,  are  the  defendants,  ad- 
mitting this  statement  to  be  true,  liable  to  the  plaintiff'?  and  we  are  of 
opinion  that  they  are.  The  heap  or  mound  on  the  defendants'  land 
must,  in  ouFopimori,  be  considered  as  an  artificial  work.  Every  oc- 
cupier of  land  is  entitled  to  the  reasonable  enjoyment  thereof.  This 
is  a  natu'ral  right  of  property,  and  it  is  well  established  that  an  occupier 
of  land  may  protect  himself  by  action  against  any  one  who  allows  any 
filth  or  any  other  noxious  thing  produced  by  him  on  his  own  land  to 
interferje  with  this  enjoyment.  We  are  further  of  opinion  that,  sub- 
ject to  a  qualification  to  be  hereafter  mentioned,  if  any  one  by  arti- 
ficial erection  on  his  own  land  causes  water,  even  though  arising  from 
natural  rainfall  only,  to  "pass  into  his  neighbor's  land,  and  thus  sub- 
stantially to  interfere  with  his  enjoyment,  he  will  be  liable  to  an  action 
at  tlie  suit  of  him  who  is  so  injured,  and  this  view  agrees  with  the  opinr 
ion  expressed  by  the  Master  of  the  Rolls  in  the  case  of  Broder  v.  Sail- 
lard,  2  Ch.  D.  at  page  700.    I  have  limited  this  statement  of  liability  to 


118  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part   1 

liability  for  allowing  things  in  themselves  offensive  to  pass  into  a  neigh- 
bour's property,  and  for  causing  by  artificial  means  things  in  them- 
selves inoffensive  to  pass  into  a  neighbour's  property  to  the  prejudice 
of  his  enjoyment  thereof,  because  there  are  many  things  which  whexi 
done  on  a  man's  own  land  (as  building  so  as  to  interfere  with  the  pros- 
pect, or  so  as  to  obstrvict  lights  not  ancient)  are  not  actionable,  even 
though  they  interfere  with  a  neighbour's  enjoyment  of  his  property. 

But  it  is  urged  that  this  is  at  variance  with  the  decision  that  if,  in 
consequence  of  a  mine-owner  on  the  rise  working  out  his  minerals,  wa- 
ter comes  by  natural  gravitation  into  the  mines  of  the  owner  on  the 
deep,  the  latter  mine-owner  cannot  maintain  any  action  for  the  loss 
which  he  thereby  sustained.  But  excavating  and  raising  the  minerals 
is  considered  the  natural  use  of  mineral  land,  and  these  decisions  are 
referable  to  this  principle,  that  the  owner  of  land  holds  his  right  to  the 
enjoyment  thereof,  subject  to  such  annoyance  as  is  the  consequence  of 
what  is  called  the  natural  user  by  his  neighbour  of  his  land,  and  that 
when  an  interference  with  this  enjoyment  by  something  in  the  nature 
of  nuisance  (as  distinguished  from  an  interruption  or  disturbance  of 
an  easement  or  right  of  property  in  ancient  lights,  or  the  support  for 
the  surface  to  which  every  owner  of  property  is  entitled),  is  the  cause 
of  complaint,  no  action  can  be  maintained  if  this  is  the  result  of  the 
natural  user  by  a  neighbour  of  his  land.  That  this  is  the  principle  of 
these  cases  appears  from  the  case  of  Wilson  v.  Waddell,  2  App.  Cas. 
95,  and  from  what  is  said  by  the  Lord  Chancellor  in  Fletcher  v.  Ry- 
lands.  Law  Rep.  3  H.  L.  C.  330.  Moreover,  the  cases  referred  to  have 
laid  down  that  a  mine-owner  is  exempt  from  liability,  for  water  which 
in  consequence  of  his  works  flows  by  gravitation  into  an  adjoining 
mine,  only  if  his  works  are  carried  on  with  skill  and  in  the  usual  man- 
ner; and  in  the  present  case  it  is  stated  that  the  defendants  have  con- 
ducted this  operation  negligently  and  improperly.  The  decisions,  there- 
fore, as  regards  the  rights  of  adjoining  mine-owners,  do  not  enable  the 
defendants  to  discharge  themselves  from  liability. 

It  was  also  argued  that  a  land-owner,  who  by  operations  on  his  own 
land  drains  the  water  percolating  underground  in  the  property  of  his 
neighbour,  is  not  liable  to  an  action  by  the  man  whose  land  is  thus  de- 
prived of  its  natural  moisture,  and  this  it  was  argued  was  inconsistent 
with  a  judgment  for  the  plaintiff  on  a  statement  alleging  as  a  cause  of 
action  an  alteration  in  the  percolation  of  water.  It  is  sufficient  to  say 
that  no  one  can  maintain  an  action  unless  there  is  some  injury  to  some- 
thing to  which  the  law  recognizes  his  title,  and  the  law  does  not  rec- 
ognize any  title  in  a  land-owner  to  water  percolating  through  his  prop- 
erty underground  and  in  no  definite  channel.  • 

We  are  of  opinion  that  the  maxim  "Sic  utere  tuo  ut  alienum  non 
laedas"  applies  to  and  governs  the  present  case,  and  that  as  the  plain- 
tiff by  his  statement  of  claim  alleges  that  the  defendants  have  by  ar- 
tificial erections  on  their  land  caused  water  to  flow  into  the  plaintift''s 


Ch.  5)  SURFACE   WATERS  119 

land,  in  a  manner  in  whicii  it  would  not  but  for  such  erection  have 
done,  the  defendants  are  answerable  for  the  injury  caused  thereby  to 
the  plaintiff. 

Judgment  affirmed.  ^^ 


FITZPATRICK  v.  WELCH. 

(Supreme  Judicial  Court  of  Massachusetts,  1S99.     174  Mass.  486,  55  N.   E. 

178,  48  L.  R.  A.  278.) 

HoLME^s,  J.  The  plaintiff's  case  was  that  water  flowing  from  the 
roof  of  the  defendant's  stable  into  a  gutter  along:  the  side  of  the  stable 
was  discharged  upon  the  plaintiff's  land  in  large  quantities  through  an 
aperture  in  the  gutter,  and  thus  did  the  damage  for  which  suit  is 
brought.  If  these  were  the  facts,  a  ruling  that  the  defendant  was 
bound  to  use  only  ordinary  care  properly  was  refused. 

One  who  arranges  a  roof  and  gutter  in  such  a  way  that  the  first  will 
collect  water,  and  the  second  manifestly  will  discharge  it  upon  a  neigh- 
bor's land  unless  prevented,  has  notice  that  lie  threatens  harm  to  his' 
neighbor  of  a  kind  which  the  law,  in  its  adjustment  of  their  conflicting 
interests,  d^s_not  permit  him  knowingly  to  inflict.  Bates  v.  Inhabit- 
ants of  Westborough,  151  Mass.  174,  181,  23  N.  E.  1070,  7  L.  R.  A. 
156.  The  danger  is  so  manifest,  so  constant,  and  so  great  that  al- 
though, no  doubt,  a  possibility  of  harm  does  not  always  require  more 
than  the  exercise  of  ordinary  care  to  prevent  it  (Quinn  v.  Crimmings, 
171  Mass.  255,  50  N.  E.  624,  42  L.  R.  A.  101,  68  Am.  St.  Rep.  420), 
and  although  in  some  states  only  ordinary  care  is  required  in  cases  like 
this  (Underwood  v.  Waldron,  33  Mich.  232,  238,  239,  Garland  v. 
Towne,  55  N.  H.  55,  20  Am.  Rep.  164),  the  requirement  here  and  else- 
where is  higher,  and  sometimes  is  stated  as  absolute,  to  prevent  at  one's 
peril  the  harm  from  coming  to  pass  (Shipley  v.  Fifty  Associates,  106 
Mass.  194,  199,  8  Am.  Rep.  318;  Jutte  v.  Hughes,  67  N.  Y.  267,  272). 

If  the  defendant  is  liable,  she  is  liable  for  damage  to  artificial  struc- 
tures _upon  the  j)laintiff's  land  (Copper  v.  Dolvin,  68  Iowa,  757,  28  N. 
W.  59,  56  Am^  Rep.  872 ;  Martin  v.  Simpson,  6  Allen,  102,  105 ;  and 
cases  below) ;  and,  if  the  discharge  of  water  caused  the  wall  to  fall,  she 
is  liable  for  it,  whether  the  wall  was  well  constructed  or  not.  The  re- 
quest which  was  refused  would  have  exonerated  the  defendant  if  the 
wall  was  ill  constructed,  even  though  the  bad  construction  did  not  con- 
tribute to  the  damage.  It  is  not  necessary  to  consider  this  question 
more  nicely,  as  it  appears  that  full  instructions  were  given,  and  the 


17 Ace:  Rainwater  tlirown  on  adjacent  premises  from  houses.  Conner  v. 
Woodfill,  126  Ind.  85,  25  N.  E.  876,  22  Am.  St.  Rep.  568  (1890);  Beach  v. 
Gaylord.  43  Minn.  476,  45  N.  W.  1095  (1890);  Bellows  v.  Sackett,  15  Barb. 
(N.  Y.)  96  (1853). 


V        t^^rt^  v ,      ^^ 


120  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part  1 

only  exception  is  to  the  refusal  of  the  defendant's  request.     Under- 
wood V.  Waldron,  33  Mich.  232,  236,  237;  Gould  v.  McKenna,  86  Pa. 
297,  27  Am.  Rep.  705. 
Exceptions  overruled.^* 

18  See  Davis  v.  Niagara  Falls  Tower  Co.,  171  N.  T.  336,  64  N.  E.  4,  57  L. 
R.  A.  54.5,  S9  Am.  St.  Rep.  817  (1902). 

The  wall  of  A.'s  house  was  built  on  loose  soil  and  in  a  careless  fashion. 
B.  negligently  allowed  the  water  from  his  roof  to  fall  on  A.'s  land,  to  the 
damage  of  A.'s  wall.  Held,  A.'s  negligence  in  building,  assuming  it  to  be 
one  of  the  causes  of  the  destruction  of  the  wall,  will  not  bar  an  action 
against  B.  Underwood  v.  Waldron,  33  Mich.  232  (1876).  Compare  Copper  v. 
Dolvin.  68  Iowa,  757,  28  N.  W.  59,  56  Am.  Rep.  872  (1886) ;  Gould  v.  McKen- 
na, 86  Pa.  297,  27  Am.  Rep.  705  (1878). 

.  See,  also,  on  the  question  of  how  far  the  defendant's  liability  is  affected 
by  his  negligence,  Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Chapman,  39  Ark.  463,  4;> 
Am.  Rep.  280  (1882);  Missouri  Pac.  Ry.  Co.  v.  Keys,  55  Kan.  205,  40  Pac. 
275,  49  Am.  St.  Rep.  249  (189.5),  ante,  p.  103;  Morrissey  v.  Chicago,  B.  &  Q. 
R.  R.,  38  Neb.  406,  56  N.  W.  946,  57  N.  W.  522  (1893) ;  Abbott  v.  Kansas  City, 
St.  J.  &  C.  B.  Ry.  Co.,  83  Mo.  271,  53  Am.  Rep.  581  (1884)  ante,  p.  103 ;  Craw- 
ford V.  Rambo,  44  Ohio  St.  279,  7  K  E.  429  (1886). 


y/ 


Ch.  6)  UNDERGROUND    WATERS  121 


CHAPTER  VI 
UNDERGROUND  WATERS 

ACTON  V.  BLUNDELL. 

(Court  of  Exchequer  Chamber,  1843.     12  Mees.  &  W.  324.) 

TiNDAL,  C.  J.^  The  question  raised  before  us  on  this  bill  of  ex- 
ceptions is  one  of  equal  novelty  and  importance.  The  plaintiff  below, 
who  is  also  the  plaintiff  in  error,  in  his  action  on  the  case,  declared 
in  the  first  count  for  the  disturbance  of  his  right  to  the  water  of  certain 
underground  springs,  streams,  and  water  courses,  which,  as  he  alleg- 
ed, ought  of  right  to  run,  flow,  and  percolate  into  the  closes  of  the  plain- 
tiff, for  supplying  certain  mills  with  water;  and  in  the  second  count 
for  the  draining  off  the  water  of  a  certain  spring  or  well  of  water  in 
a  certain  close  of  the  plaintiff*,  by  reason  of  the  possession  of  which 
close,  as  he  alleged,  he  ought  of  right  to  have  the  use,  benefit,  and  en- 
joyment of  the  water  of  the  said  spring  or  well  for  the  convenient  use 
of  his  close.  The  defendants  by  their  pleas  traversed  the  rights  in  the 
manner  alleged  in  those  counts  respectively. 

At  the  trial  the  plaintiff  proved,  that,  within  twenty,  years  before 
the  commencement  of  the  suit,  viz.  in  the  latter  end  of  1821,  a  former 
owner  and  occupier  of  certain  land  and  a  cotton  mill,  now  belonging  to 
the  plaintiff,  had  sunk_and  madejn. juchjand  a  well  for  raising^  water 
for  the  working  of  the  mill;  and  that  the  defendants,  in  the  year  1837. 
had  sunk  a  coal  pit  in  the  land  of  one  of  the  defendants  at  about  three- 
quarters  of  a  mile  from  the  plaintiff's  well,  and  about  three  years  after 
sunk  a  second  at  a  somewhat  less  distance;  the  consequence  of  which 
sinking  was,  that,  by  the  first,  the  supply  of  water  was  considerably  di- 
minished, and  by  the  second  was  rendered  altogether  insufficient  for 
the  purpose's  of  the  mill.  The  learned  Judge  before  whom  the  cause 
was  tried  directed  the  jury,  that,  if  the  defendants  had  proceeded  and 
acted  in  the  usual  and  proper  manner  on  the  land,  for  the  purpose  of 
working  and  winning  a  coal  mine  therein,  th£y_iiiight_lawfuliy  do  so, 
and  that  the  plaintiff's  evidence  was  not  sufficient  to  support  the  alle- 
gations in  his  declaration  as  traversed  by  the  second  and  third  pleas. 
Against  this  direction  of  the  Judge  the  counsel  for  the  plaintiff  tender- 
ed the  bill  of  exceptions  which  has  been  argued  before  us.  And  after 
hearing  such  argument,  and  consideration  of  the  case,  we  are  of  opin- 
ion that  the  direction  of  the  learned  Judge  was  correct  in  point  of  law. 

The  question  argued  before  us  has  been  in  substance  this:    Whether 

1  Part  of  the  opinion  is  omitted. 


/V/  c^ut  iii^ 


122  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part   1 

the  right  to  the  enjoyment  of  an  underground  spring,  or  of  a  well  sup- 
plied by  such  underground  spring,  is  governed  by  the  same  rule  of  law 
as  that  which  applies  to,  and  regulates,  a  watercourse  flowing  on  the 
surface.    *    *    * 

The  ground  and  origin  of  the  law  which  governs  streams  running  in 
their  natural  course  would  seem  to  be  this,  that  the  right  enjoyed  by 
the  several  proprietors  of  the  lands  over  which  they  flow  is,  and  always 
has  been,  public  and  notorious;  that  fhe  enjoyment  has  been  long  con- 
tinued— in  ordinary  cases,  indeed,  time  out  of  mind — and  uninterrupt- 
ed; each  man  knowing  what  he  receives  and  what  has  always  been 
received  from  the  higher  lands,  and  what  he  transmits  and  what  has  al- 
ways been  transmitted  to  the  lower.  The  rule,  therefore,  either  as- 
sumes for  its  foundation  the  impHed  assent  and  agreement  of  the  prg- 
prietors  of  the  difl:"erent  lands  from  all  ages,  or  perhaps  it  may  be  con- 
sidered as  a  rule  of  positive  law,  (which  would  seem  to  be  the  opinion 
of  Fleta  and  of  Blackstone,)  the  origin  of  which  is  lost  by  the  progress 
of  time ;  or  it  may  not  be  unfitly  treated,  as  laid  down  by  Mr.  Justice 
Story,  in  his  judgment  in  the  case  of  Tyler  v.  Wilkinson,  in  the  courts 
of  the  United  States,  4  Mason's  (American)  Reports,  401,  Fed.  Cas. 
No.  14,312,  as  "an  incident  to  the  land;  and  that  whoever  seeks  to 
found  an  exclusive  use  must  establish  a  rightful  appropriation  in  some 
manner  known  and  admitted  by  the  law."  But  in  the  case  of  a  well 
sunk  by  a  proprietor  in  his  own  land,  the  water  which  feeds  it  from  a 
neighbouring  soil  does  not  flow  openly  in  the  sight  of  the  neighbour- 
ing proprietor,  but  through  the  hidden  veins  of  the  earth  beneath  its 
surface:  no  man  can  tell  what  changes  these  underground  sources 
have  undergone  in  the  progress  of  time :  it  may  well  be,  that  it  is  only 
yesterday's  date,  that  they  first  took  the  course  and  direction  which  en- 
abled them  to  supply  the  well:  again,  no  proprietor  knows  what  por- 
tion of  water  is  taken  from  beneath  his  own'  soil :  how  much  he  gives 
originally,  or  how  much  he  transmits  only,  or  how  much  he  receives ; 
on  the  contrary,  until  the  well  is  sunk,  and  the  water  collected  by  drain- 
ing into  it,  there  cannot  properly  be  said,  with  reference  to  the  well, 
to  be  any  flow  of  water  at  all.  In  the  case,  therefore,  of  the  well,  there 
can  be  no  ground  for  implying  any  mutual  consent  or  agreement,  for 
ages  past,  between  the  owners  of  the  several  lands  beneath  which  the 
underground  springs  may  exist,  which  is  one  of  the  foundations  on 
which  the  law  as  to  running  streams  is  supposed  to  be  built ;  nor,  for 
the  same  reason,  can  any  trace  of  a  positive  law  be  inferred  from  long- 
continued  acquiescence  and  submission,  whilst  the  very  existence  of  the 
underground  springs  or  of  the  well  may  be  unknown  to  the  proprietors 
of  the  soil. 

But  the  difference  between  the  two  cases  with  respect  to  the  conse- 
quences, if  the  same  law  is  to  be  applied  to  both,  is  still  more  appar- 
ent. In  the  case  of  the  running  stream,  the  owner  of  the  soil  merely 
transmits  the  water  over  its  surface:  he  receives  as  much  from  his 
higher  neighbour  as  he  sends  down  to  his  neighbour  below :    he  is  nei- 


Ch.  6)  UNDERGROUND   WATERS  123 

ther  better  nor  worse:  the  level  of  the  water  remains  the  same.  But 
if  the  man  who  sinks  the  well  in  his  own  land  can  acquire  by  that  act  an 
absolute  and  indefeasible  right  to  the  water  that  collects  in  it,  he  has 


ijie  power  of  preventing  his  neighbour  from  making  any  use  of  the 
spring  in  his  own  soil  which  shall  interfere  with  the  enjoyment  of  the 
well.  He  has  the  power,  still  further,  of  debarring  the  owner  of  the 
land  in  which  the  spring  is  first  found,  or  through  which  it  is  trans- 
mitted, from  draining  his  land  for  the  proper  cultivation  of  the  soil: 
and  thus,  by  an  act  which  is  voluntary  on  his  part,  and  which  may  be 
entirely  unsuspected  by  his  neighbour,  he  may  impose  on  such  neigh- 
bour the  necessity  of  bearing  a  heavy  expense,  if  the  latter  has  erected 
machinery  for  the  purposes  of  mining,  and  discovers,  when  too  late, 
that  the  appropriation  of  the  water  has  already  been  made.  Further, 
the  advantage  on  one  side,  and  the  detriment  to  the  other,  may  bear  no 
proportion.  The  well  may  be  sunk  to  supply  a  cottage,  or  a  drinking 
place  for  cattle ;  whilst  the  owner  of  the  adjoining  land  may  be  pre- 
vented from  winning  metals  and  minerals  of  inestimable  value.  And, 
lastly,  there  is  no  limit  of  space  within  which  the  claim  of  right  to  an 
underground  spring  can  be  confined :  in  the  present  case,  the  nearest 
coal  pit  is  at  the  distance  of  half  a  mile  from  the  well:  it  is  obvious 
the  law  must  equally  apply  if  there  is  an  interval  of  many  miles. 

Considering,  therefore,  the  state  of  circumstances  upon  which  the 
law  is  grounded  in  the  one  case  to  be  entirely  dissimilar  from  those 
which  exist  in  the  other;  and  that  the  application  of  the  same  rule  to 
botE  wouTd^lead,  in  many  cases,  to  consequences  at  once  unreasonable 
and  unjust;  we  feel  ourselves  warranted  in  holding,  upon  principle, 
that  the  case  now  under  discussion  does  not  fall  wjthin  the  rule  which 
obtains  as  to  surface  strea.ms,  nor  is  it  to  be  governed  by  analogy  there- 
with. 

No  case  has  been  cited  on  either  side  bearing  directly  on  the  subject 
in  dispute.     *    *     * 

The  Roman  law  forms  no  rule,  binding  in  itself,  upon  the  subjects  of 
these  realms ;  but,  in  deciding  a  case  upon  principle,  where  no  direct 
authority  can  be  cited  from  our  books,  it  affords  no  small  evidence  of 
the  soundness  of  the  conclusion  at  which  we  have  arrived,  if  it  proves 
to  be  supported  by  that  law,  the  fruit  of  the  researches  of  the  most 
learned  men,  the  collective  wisdom  of  ages,  and  the  groundwork  of  the 
municipal  law  of  most  of  the  countries  in  Europe. 

The  authority  of  one  at  least  of  the  learned  Roman  lawyers  appears 
decisive  upon  the  point  in  favour  of  the  defendants ;  of  some  others 
the  opinion  is  expressed  with  more  obscurity.  In  the  Digest,  lib.  39, 
tit.  3,  De  sequa  et  aquae  pluvise  arcandae,  s.  12,  "Denique  Marcellus 
scribit.  Cum  eo,  qui  in  suo  fodiens,  vicini  fontem  avertit,  nihil  posse 
agi :  nee  de  dolo  actionem,  et  sane  non  debet  habere ;  si  non  animo 
vicini  nocendi,  sed  suum  agrum  meliorem  faciendi,  id  fecit." 

It  is  scarcely  necessary  to  say,  that  we  intimate  no  opinion  whatever 
as  to  what  might  be  the  rule  of  law,  if  there  had  been  an  uninterrupt- 


124  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part   1 

ed  user  of  the  right  for  more  than  the  last  twenty  years  f  but,  confin- 
ing ourselves  strictly  to  the  facts  stated  in  the  bill  of  exceptions,  we 
think  the  present  case,  for  the  reasons  above  given,  is  not  to  be  govern- 
ed by  the  law  which  applies  to  rivers  and  flowing  streams,  but  that  it 
rather  falls  within  that  principle,  which  gives  to  the  owner  ofthe  soil 
all  that  lies  beneath  his  surface;  that  the  land  immediately  below  Is 
his  property,  whether  it  is  solid  rock,  or  porous  ground,  or  venous 
earth,  or  part  soil,  part  water ;  that  the  person  who  owns  the  surface 
may  dig  therein,  and  apply  all  that  is  there  found  to  his  own  purposes 
at  his  free  will  and  pleasure ;  and  that  if,  in  the  exercise  of  such  right, 
he  intej^-cepts  or  drains  off  the  water  collected  from  underground 
springs  in  his  neighbour's  well,  this  inconvenience  to  his  neighbour  falls 
within  the  description  of  damnum  absque  injuria,  which  cannot  become 
the  ground  of  an  action. 

We  think,  therefore,  the  direction  given  by  the  learned  judge  at  the* 
trial  was  correct,  and  that  the  judgment  already  given  for  the  defend- 
ants  in  the  Court  below  must  be  affirmed. 

Judgment  affirmed.' 

2  "Tlie  lots  of  the  plaintiff  and  defendant  adjoin  each  other.  And  the 
case  finds,  that  the  plaintiff's  cellar  was  dug  fourteen  years  ago,  and  water 
was  then  found,  and  in  about  two  years  afterwards  an  excavation  was  made 
in  the  earth,  in  the  place  where  the  well  now  stands,  about  three  feet  deep, 
and  a  barrel  was  inserted,  and  the  water  rose  to  the  surface.  Afterwards 
the  defendant  dug  to  obtain  water  in  his  own  soil,  and  in  a  place  where  It 
was  convenient  for  him,  near  to  the  well  of  the  plaintiff,  and  after  the  de- 
fendant's well  was  dug,  the  water_ceased  to  flow  into  the  plaintiff's  well,  so 
copiously  as  it  did  before.  It  is  for  this  alleged  injury  that  the  action  is 
brought.  Then  it  is  to  be  considered,  whether  the  plaintiff  has  proved  any 
such  easement,  as  she  claims  to  have  in  the  soil  of  the  defendant.  She  does 
not  pretend,  that  there  has  been  any  written  grant  from  the  defendant.  She 
relies  upon  the  use,  as  evidence  from  which  a  jury  should  presume  a  ^rant^ 
and  there  is  no  other  circumstance  to  be  relied  upon.  But  by  our  law,  the 
right  of  the  plaintiff  to  control  the  operations  of  the  defendant  on  his  own 
soil  must,  in  the  absence  of  a  written  agreement,  be  made  out  by  an  ad- 
verse possession  continued  peaceably  under  a  claim  of  right  for  twenty  years' 
at  the  least.  In  the  present  case  such  proof  is  wanting.  There  is  not  evi- 
dence of  any  adverse  use  or  possession  at  all.  For  the  defendant  had  no 
means  of  knowing  that  the  plaintiff's  well  was  supplied  by  springs  in  "lERe 
defendant's  soil,  until  the  defendant  dug  for  water  there  for  his  own  use." 
Greenleaf  v.  Francis,  18  Pick.  (Mass.)  117,  122  (1836).  See,  also,  Wheatley 
V.  Baugh,  25  Pa.  528,  G4  Am.  Dec.  721   (1855). 

3  Ace. :    Wheatley  v.  Baugh,  ante,  p.  124. 

A.  had  a  well  on  his  own  land,  whence  he  drew  water  for  domestic  and 
other  purposes ;  B.  dug  a  well  on  his  land  near  to  A.'s  well  to  get  water  for 
his  domestic  purposes.  Thereafter,  and  in  consequence  of  B.'s  digging,  the 
water  in  A.'s  well  was  insufficient  for  his  pui-poses.  Held,  A.  has  no  cause 
of  action  against  B.  Roath  v.  Driscoll,  20  Conn.  533,  52  Am.  Dec.  352 
(1850).  See,  also,  Bloodgood  v.  Ayers,  108  N.  Y.  400,  15  N.  E.  433,  2  Am. 
St.  Rep.  443  (1887) ;  Frazier  v.  Brown,  12  Ohio  St.  294  (1801). 

A.  and  B.  were  adjacent  landowners.  A  well  on  A.'s  land  was  supplied 
by  percolating  water  from  B.'s  land.  B.  dug  a  ditch  on  his  own  land,  s<» 
as  to  prevent  the  percolation  to  A.'s  well.  An  instruction  was  given  thai 
if  the  jury  found  that  the  acts  of  B.  prevented  the  usual  and  natural  fLow 
of  the  water  underground  to  A.'s  soil,  and  that  these  acts  were  done  by  B. 
solely  with  the  purpose  of  injuring  A.  and  depriving  him  of  water,  and  not 
with  any  purpose  of  usefulness  to   himself,   B.   would  be  liable   to  A.   for 


Ch.  6)  UNDERGROUND  WATERS  125 


MEEKER  V.  CITY  OF  EAST  ORANGE. 

(Court  of  Eirors  and  Appeals  of  ^\'ew  Jersey,  1909.     77  N.  J.  Law.  6L'o,  74 
Atl.  379,  25  L.  R.  A.  [N.  S.]  465,  134  Am.  St.  Rep.  798.) 

PiTNKY,  Ch.*  Plaintiff  brought  two  actions  in  one  of  the  district 
courts  of  the  city  of  Newark  to  recover  damages  for  the  diversion 
by  the  defendant  of  percolating  underground  water.  In  each  case  the 
'district  court  rendered  judgment  in  favor  of  the  defendant,  and 
upon  appeal  to  the  Supreme  Court  the  judgments  were  affirmed.  By 
writs  of  error  the  records  are  brought  here  for  review. 

The  cases  were  submitted  to  the  trial  court  upon  agreed  statements 
of  fact.  In  one  case  it  is  stipulated  that  plaintiff  owns  and  occupies  a 
farm  of  about  100  acres,  situate  in  the  valley  of  Canoe  brook,  in  the 
townships  of  Millburn  and  Livingston,  in  the  county  of  Essex.  He 
is  a  milkman,  and  has  for  a  number  of  years  used  his  farm  for  the 
pasture  and  support  of  his  cows  and  horses.  Canoe  brook  and  two 
small  streams  tributary  thereto  flow  through  his  fann.  Upon  the 
farm  there  is  also  a  spring,  inclosed  by  a  springhouse,  the  water 
of  which  has  for  years  been  used  by  the  plaintiff  for  drinking  pur- 
poses and  for  the  storing  and  keeping  of  his  milk.  His  cattle  in  pas- 
ture have  for  years  resorted  to  the  brook  and  its  tributaries  for  drink- 
ing water.  The  defendant,  the  city  of  East  Orange,  under  the  au- 
thority of  "An  act  to  enable  cities  to  supply  the  inhabitants  thereof 
with  pure  and  wholesome  water,"  approved  April  21,  1876,  and  the 
acts  supplemental  thereto  and  amendatory  thereof  (P.  L.  1876,  p.  366; 
Gen.  St.  1895,  pp.  646-650,  §§  902-917),  acquired  a  tract  of  land  con- 
taining about  680  acres  situate  in  the  valley  of  Canoe  brook  and  in  the 
township  of  Millburn,  and  installed  thereon  a  water  plant  consisting  of 
about_20  artesian  wells,  situate  further  down  the  stream  than  plain- 
tiff's farm  and  distant  upwards  of  a  mile  therefrom.  In  the  construc- 
tion of  these  wells,  and  of  the  works,  mains,  and  reservoirs  connected 
therewith,  the  city  has  expended  more  than  $1,000,000.  A  few  years 
prior  to  the  commencement  of  the  action,  the  city  began  to  take  water 
from  the  wells,  and  has  thus  taken  percolating  underground  water, 
which,  but  for  its  interception,  would  have  reached  the  plaintiff's  spring 
or  stream.  No  water  other  than  percolating  water  has  been  taken,  and 
no  water  has  been  taken  out  of  any  surface  stream  or  from  the  spring 
of  the  plaintiff  after  it  (the  water)  has  appeared  upon  the  surface  or  in 
any  surface  or  stream.    In  this  action  the  plaintiff  seeks  damages  f(*^ 

any  damage  sustained  by  A.  Held,  the  instruction  was  incorrect.  Chat- 
field  V.  Wilson,  28  Vt.  49  (1855).  Contra:  Barclay  v.  Abraham,  121  Iowa, 
619,  96  N.  W.  1080,  64  L.  R.  A.  255,  100  Am.  St.  Rep.  365  (1903) ;  Stillwatrr 
Water  Co.  v.  Farmer,  89  Minn.  58,  93  N.  W,  907,  60  L.  R.  A.  875,  99  Am.  Si. 
Rep.  541  (1903).  Compare  Phelps  v.  Nowlen,,72  N.  Y.  39,  28  Am.  Kep.  93 
(1878). 

i  Part  of  the  opinion  is  omitted 


/    (c  U 


12G  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part   1 

the  diversion  of  the  underground  water  that  otherwise  would  have 
reached  his  spring  and  streams. 

In  the  other  action  the  agreed  statement  of  facts  differs  only  in  that 
it  shows  the  existence  upon  plaintiff's  farm  of  a  well  which  for  years 
had  provided  water  for  the  various  purposes  of  the  plaintiff,  and  that 
as  a  result  of  the  defendant's  operations  it  had  taken  percolating 
underground  water  which  otherwise  would  have  reached  this  well, 
and  had  also  taken  percolating  underground  water  from  beneath  the 
surface  or  soil  of  the  plaintiff's  land  to  such  an  extent  that  his  crops 
will  not  now  grow  as  they  did  formerly,  and  the  taking  of  such 
percolating  water  has  damaged  the  plaintiff's  hay  and  crops,  and 
also  has  reduced  the  level  of  the  water  in  his  well.  For  this  diversion 
damages  are  sought.  :   :?;!.'!•■. 

The  judgments  under  review  are  based  upon  the  theory  that  the 
city  has  an  absolute  right  to  appropriate  all  percolating  water  found 
beneath  the  land  owned  by  it,  and  to  use  the  water  for  purposes  en- 
tirely unconnected  with  the  beneficial  use  and  enjoyment  of  that  land, 
to  the  extent,  indeed,  of  making  merchandise  of  the  water  and  con- 
veying it  to  a  distance  for  the  ^pply  of  the  inhabitants  of  East  Or- 
ange, and  that  although  by  such  diversion  the  plaintiff's  spring,  well, 
and  stream  are  dried  up,  and  his  land  rendered  so  arid  as  to  be  un- 
tillable,  it^  is  damnum  absque  injuria.  The  judgments  are  attacked 
upon  the  ground  that  the  law  recognizes  correlative  rights  in  percolat- 
ing subterranean  waters,  that  each  landowner  is  entitled  to  use  such 
waters  only  in  a  reasonable  manner  and  to  a  reasonable  extent  bene- 
ficial to  his  own  land,  and  without  undue  interference  with  the  rights 
of  other  landowners  to  the  dike  use  and  enjoyment  of  waters  per- 
colating beneath  their  lands,  or  of  water  courses  fed  therefrom. 

The  law  respecting  the  rights  of  property  owners  in  percolating  sub- 
terranean waters  is  of  comparatively  recent  development;  the  first 
English  decision  bearing  directly  upon  the  question  having  been  ren- 
dered in  1843.  Acton  v.  Blundell,  12  M.  &  W.  324,  13  L.  J.  Exch. 
289.  This  was  followed  by  Chasemore  v.  Richards  (1859)  7  H.  L.  Cas. 
349,  29  L.  J.  Exch.  81,  5  Jur.  N.  S.  873,  1  Eng.  Rul.  Cas.  729.  These 
cases  may  be  taken  as  establishing  for  that  jurisdiction  the  rule  upon 
which  the  judgments  under  review  are  based.  They  were  followed 
by  a  considerable  line  of  decisions  in  this  country,  in  which  the  Eng- 
lish rule  was  adhered  to,  and  which  will  be  found  discussed  in  Wash- 
burn on  Easements,  363-390;  Angell  on  Water  Courses,  §§  109-1 14p; 
30  Am.  &  Eng.  Encyc.  Law  (2d  Ed.)  310-313. 

The  soundness  of  the  English  doctrine  was,  however,  challenged  by 
the  Supreme  Court  of  New  Hampshire  in  a  well-considered  case 
decided  in  1862  (Bassett  v.  Salisbury  Mfg.  Co.,  43  N.  H.  569,  82  Am. 
Dec.  179),  where  it  was  elaborately  reasoned  that  the  doctrine  of  ab- 
solute ownership  is  not  well  founded  in  legal  principles,  and  is  not 
so  commended  by  its  practical  application  as  to  require  its  adoption, 
that  the  true  rule  is  that,  the  rights  of  each  owner  being  similar,  and 


Ch.  6)  UNDERGROUND   WATERS  127 

their  enjoyment  dependent  upon  the  action  of  other  landowners,  their 
rights  must  be  correlative  and  subject  to  the  operation  of  the  maxim 
sic  utere,  etc.,  so  that  each  landowner  is  restricted  to  a  reasonable 
exercise  of  his  own  rights  and  a  reasonable  use  of  his  own  property, 
in  view  of  the  similar  rights  of  others.  This  decision  was  followed 
by  Swett  V.  Cutts  (1870)  50  N.  H.  439,  9  Am.  Rep.  276,  where  the 
court  again  laid  down  that  the  landowner  has  not  an  absolute  and  un- 
qualified property  in  all  such  water  as  may  be  found  in  his  soil,  to 
do  what  he  pleases  with  it,  as  with  the  sand  and  rock  that  form  part 
of  the  soil,  but  that  his  right  is  to  make  reasonable  use  of  it  for  do-  ^  y 
mestic,  agricultural,  and  manufacturing  purposes,  not  trenching  upon 
the  similar  rights  of  others.  The  doctrine,  thus  enunciated,  has  come 
to  be  known  in  the  discussion  of  the  topic  as  the  rule  of  "reasonable 
use."     *     *     *  — 

A  review  of  the  reasoning  upon  which  the  English  doctrine  respect- 
ing percolating  underground  waters  rests  will  demonstrate,  as  we  think, 
that  this  reasoning  is  unsatisfactory  in  itself  and  inconsistent  with 
legal  principles  otherwise  well  established.  Thus,  in  Acton  v.  Blundell, 
12  AI.  &  W.  Exch.  349,  Tindal,  C.  J.,  in  undertaking  to  show  the  in- 
applicability to  percolating  waters  of  the  law  that  governs  running 
streams,  declared  that  the  ground  and  origin  of  the  law  respecting 
the  latter  would  seem  to  be  that  the  right  enjoyed  by  the  several  pro- 
prietors of  the  lands  over  which  they  flow  is,  and  always  has  been, 
_public  and  notorious,  that  the  enjoyment  has  been  long-continued  and 
uninterrupted,  and  therefore  based  upon  the  implied  assent  and  agree- 
ment of  the  proprietors  of  the  different  lands  from  all  ages,  while 
underground  waters,  being  concealed  from  view,  there  can  be  no  im- 
plied mutual  consent  or  agreement  between  the  owners  of  the  several 
lands  respecting  them ;  but,  as  has  been  since  repeatedly  pointed  out, 
the  right  of  the  riparian  owner  to  the  flow  of  a  natural  stream  arises 
ex  jure  naturae,  and  not  at  all  from  prescription  or  presumed  grant 
or  acquiescence  arising  from  long-continued  user.  See  remarks  of 
Parke,  B.,  in  Broadbent  v.  Ramsbotham,  as  reported  in  25  L.  J.  Exch., 
at  page  121 ;  and  remarks  of  Lord  Wensleydale  in  Chasemore  v. 
Richards,  7  H.  L.  Cas.,  at  pages  382,  383,  29  L.  J.  Exch.  87,  1  Eng. 
Rul.  Cas.  752,  753,  and  cases  cited. 

Again,  in  Acton  v.  Blundell,  12  M.  &  W.  351,  the  Chief  Justice  said: 
"If  a  man  who  sinks  a  well  in  his  own  land  can  acquire  by  that  act  an 
absolute  and  indefeasible  right  to  the  water  that  collects  in  it,  he  has 
the  power  of  preventing  his  neighbor  from  making  any  use  of  the 
spring  in  his  own  soil  which  shall  interfere  with  the  enjoyment  of 
the  soil."  Obviously  he  failed  to  note  that  there  is  a^  middle  ground 
between  the  existence  of  an  absolute  and  indefeasible  right  and  the 
absence  of  any  right  that  the  law  will  recognize  and  protect.  There 
is  room  for  the  existence  of  qualified  and  correlative  rights  in  both 
landowners.  The  English  rule  seems  to  be  rested  at  bottom  upon  the 
maxim,  "Cujus  est  solum,  ejus  est  usque  ad  coelum  et  ad  inferos." 


128  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part   1 

Thus,  in  Acton  v.  Blundell,  12  M.  &  W.  354,  Tindal,  C.  J.,  said  that 
the  case  fell  within  "that  principle  which  gives  to  the  owner  of  the  soil 
all  that  lies  beneath  his  surface ;  that  the  land  immediately  below  ;s 
his  property,  whether  it  is  solid  rock,  or  porous  ground,  or  venous 
earth,  or  part  soil,  part  water ;  that  the  person  who  owns  the  surface 
may  dig  therein,  and  apply  all  that  is  there  found  to  his  own  purposes 
at  his  free  will  and  pleasure."  Here  the  impracticability  of  applying 
the  rule  of  absolute  ownership  to  the  fluid,  water,  which  by  reason  of 
its  nature  is  incapable  of  being  subjected  to  such  ownership,  is  ap- 
parently overlooked.  If  the  owner  of  Whiteacre  is  the  absolute  pro- 
prietor of  all  the  percolating  water  found  beneath  the  soil,  the  owner 
of  the  neighboring  Blackacre  must,  by  the  same  rule,  have  the  like 
proprietorship  in  his  own  percolating  water.  How,  then,  can  it  be  con- 
sistent with  the  declared  principle  to  allow  the  owner  of  Whiteacre 
to  withdraw,  by  pumping  or  otherwise,  not  only  all  the  percolating 
water  that  is  normally  subjacent  to  his  own  soil,  but  also,  and  at  the 
same  time,  the  whole  or  a  part  of  that  which  is  normally  subjacent  to 
Blackacre  ?  Where  percolating  water  exists  in  a  state  of  nature  gener- 
ally throughout  a  tract  of  land,  whose  parcels  are  held  in  several  own- 
ership by  different  proprietors,  it  is,  in  the  nature  of  things,  iinpossible_ 
to  accord  to  each  of  these  proprietors  the  absolute  right  to  withdraw 
ad  libilum  all  percolating  water  which  may  be  reached  by  a  well  or 
pump  upon  any  one  of  the  several  lots,  for  such  withdrawal  by  one 
owner  necessarily  interferes  to  some  extent  with  the  enjoyment  of 
the  like  privilege  and  opportunity  by  the  other  owners. 

Again,  the  denial  of  the  applicability  to  underground  waters  of  the 
general  principles  of  law  that  obtain  with  respect  to  Avaters  upon  the 
surface  of  the  earth  is  in  part  placed  upon  the  mere  difficulty  of  prov- 
ing the  facts  respecting  water  that  is  concealed  from  view ;  but  ex- 
perience has  demonstrated  in  a  multitude  of  cases  that  this  difficulty 
is  often  readily  solved.  When  it  is  solved  in  a  given  case,  by  the 
production  of  satisfactory  proof,  this  reason  for  the  rule  at  once  van- 
ishes. It  is  sometimes  said  that,  unless  the  English  rule  be  adopted, 
landowners  will  be  hampered  in  the  development  of  their  property 
because  of  the  uncertainty  that  would  thus  be  thrown  about  their 
rights.  It  seems  to  us  that  this  reasoning  is  wholly  faulty.  If  the 
English  rule  is  to  obtain,  a  man  may  discover  upon  his  own  land  springs 
of  great  value  for  medicinal  purposes  or  for  use  in  special  forms  of 
manufacture,  and  may  invest  large  sums  of  money  upon  their  develop- 
ment; yet  he  is  subject  at  any  time  to  have  the  normal  supply  of  such 
springs  wholly  cut  off  by  a  neighboring  landowner,  who  may  with 
impunity  sink  deeper  wells  and  employ  more  powerful  machinery,  and 
thus  wholly  drain  the  subsurface  water  from  the  land  of  the  first  dis- 
coverer. 

In  the  case  before  us,  the  city  of  East  Orange  might  have  its  un- 
derground water  supply  cut  off  or  materially  impaired  by  the  estab- 


Ch.  G)  UNDERGROUND   WATERS  129 

lishment  of  deeper  wells  and  more  powerful  pumps  upon  some  neigh- 
boring tract — even  upon  the  tract  owned  by  the  plaintiff.     *     *     * 

Upon  the  whole,  we  are  convinced,  not  only  that  the  authority  of  the 
English  cases  is  greatly  weakened  by  the  trend  of  modern  decisions 
in  this  country,  but  that  the  reasoning  upon  which  the  doctrine  of 
"reasonable  user"  rests  is  better  supported  upon  general  principles 
of  law  and  more  in  consonance  with  natural  justice  and  equity.  We 
therefore  adopt  the  latter  doctrine.  This  does  not  prevent  the  proper 
user  by  any  landowner  of  the  percolating  waters  subjacent  to  his  soil 
in  agriculture,  manufacturing,  irrigation,  or  otherwise ;  nor  does  it 
prevent  any  reasonable  development  of  his  land  by  mining  or  the  like, 
although  the  underground  water  of  neighboring  proprietors  may  thus 
be  interfered  with  or  diverted ;  but  it  does  prevent  the  withdrawal  of 
underground  waters  for  distribution  or  sale  for  uses  not  connected 
with  any  beneficial  ownership  or  enjoyment  of  the  land  whence  they 
are  taken,  if  it  thereby  result  that  the  owner  of  adjacent  or  neighboring 
land  is  interfered  with  in  his  right  to  the  reasonable  user  of  subsurface 
water  upon  his  land,  or  if  his  wells,  springs,  or  streams  are  thereby 
materially  diminished  in  flow,  or  his  land  is  rendered  so  arid  as  to  be 
less  valuable  for  agriculture,  pasturage,  or  other  legitimate  uses. 

It  follows  that  the  judgments  of  the  district  court  and  of  the  Su- 
preme Court  must  be  reversed."^     *     *     * 

5 Ace:  Katz  v.  Walkinshaw,  141  Cal.  116^  70  Pac.  663,  74  Pac.  766.  64  L. 
R.  A.  236,'9gTS.  St  Rep:  35  (1903) ;  Forbell  v.  New  York,  164  N.  Y.  522,  58 
N.  E.  644,  51  L.  R.  A.  695,  79  Am.  St.  Rep.  666  (1900).  Contra:'  Chasemore 
V.  Richards,  7  H.  L.  Gas.  349  (1859).  Compare  Houston  &  T.  C.  R.  Co.  v. 
East,  98  Tex.  146,  81  S.  W.  279,  66  L.  R.  A.  738,  107  Am.  St.  Rep.  620,  4 
Ann.  Cas.  827  (1904). 

See  Erickson  v.  Crookston  Waterworks,  Power  &  Light  Co.,  105  Minn.  182, 
117  N.  W.  435,  17  L.  R.  A.  (N.  S.)  650  (1908). 

As  to  the  form  of  relief  to  which  plaintiff  is  entitled,  compare  Westphal 
V.  New  York,  177  N.  Y.  140,  69  N.  E.  369  (1904). 

As  to  protecting  a  possible  future  user  of  water  for  local  purposes  against 
non-local  user,  see  Burr  v.  Maclay  Water  Co.,  154  Cal.  428,  98  Pac.  260  (1908)^ 

A.  had  a  valuable  mineral  spring  on  his  land;  B.,  in  the  process  of  de- 
veloping on  his  own  land  a  supply  of  the  same  water,  temporarily  pumped 
and  wasted  so  much  of  the  water  as  to  lower  A.'s  spring,  to  his  damage. 
Held,  A.  has  no  cause  of  action.  Pence  v.  Carney,  58  W.  Va.  296,  52  S.  E. 
702,  6  L.  R.  A.  (N.  S.)  266,  112  Am.  St.  Rep  963  (1905). 

B.  installed  a  pump  on  his  land,  and  pumped  and  wasted  valuable  min- 
eral water,  thereby  draining  A.'s  springs,  at  which  A.  had  erected  an  ex- 
pensive hotel  and  built  up  a  large  business.  B.  did  this  for  the  purpose  of 
compelling  A.  to  buy  him  out.  Held,  A.  may  enjoin  B.  from  so  wasting;^  the 
waters.  Gagnon  v.  French  Lick  Springs  Hotel  Co.,  163  Ind.  6817^''^  E. 
849,  68  L.  R.  A.  175  (1904).     Contra:     Bradford  v.  Pickles  [1895]  A.  C.  587. 

Defendant  bought  from  the  plaintiff  a  narrow  strip  of  land  along  a  stream 
and  then  built  a  dam  on  his  land  below.  He  made  an  embankment  on  the 
strip  to  protect  the  plaintiff's  land  from  being  flooded,  but  the  water  per- 
colated through  the  natural  banks  of  the  creek  and  made  the  plaintiff's  land 
wet.  The  defendant  was  held  liable,  though  he  had  built  the  embankment 
with  due  care  and  skill.  The  court  said:  "It  is  not  that  the  defendants 
have  unreasonably,  negligently,  unintentionally,  unnecessarily,  or  unexpect- 
edly flowed  the  plaintiff's  land,  to  his  injury,  for  their  beuetit,  that  they  are 

BlG.RlOHTS-^9 


130  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part   1 


MERRICK  WATER  CO.  v.  CITY  OF  BROOKLYN. 

(Supreme  Court  of  New  York,  Appellate  Division,  Second  Department,  1898. 

32  App.  Div.  454,  53  N.  Y.  Supp.  10,  Affirmed  [1S99]  160  N.  Y.  657, 

55  N.  E.  1097.) 

Hatch,  J.®  The  plaintiff  is  a  corporation  engaged  in  the  business 
of  collecting  water,  and  selling  the  same  to  its  various  customers 
throughout  the  neighborhood  where  it  has  its  principal  place  of  busi- 
ness. The  complaint  avers  that  the  land  occupied  by  the  plaintiff,  and 
from  which  it  obtains  its  water  supply,  is  located  on  a  subterranean 
stream  supplied  from  a  water  shed .  which  is  particularly  described ; 
that  such  underground  stream  rises  to  the  surface  on  the  plaintiff's 
land,  and  flows  into  ponds  owned  by  it.  The  complaint  further  avers 
that  the  defendant  has  acquired  a  considerable  strip  of  land  lying 
north  of  the  plaintiff's  pumping  station  and  its  wells,  upon  which 
land  it  intends  to  sink  about  80  wells,  and  draw  therefrom  a  water 
supply  for  the  city  of  Brooklyn,  and  that,  if  it  carries  out  such  purpose, 
it  will  draw  the  water  from  the  plaintiff's  wells  and  the  underground 
stream,  and  also  from  the  surface  stream  and  said  ponds,  whereby  the 
plaintiff  will  be  deprived  of  its  water,  its  business  will  be  destroyed, 
and  the  locality  in  which  it  seeks  to  carry  on  its  business  will  be 
checked  in  its  growth.  The  complaint  demands  judgment  that  the 
defendant  be  restrained  from  sinking  its  wells  or  establishing  a  pump- 
ing station,  or  doing  any  other  act  upon  its  land  which  will  diminish 
the  flow  of  water  upon  the  plaintiff's  lands.  At  the  time  of  the  trial 
the  defendant  had  sunk  its  wells,  established  its  pumping  stations,  was 
engaged  in  operating  the  same,  and  was  carrying  the  water  thus  ob- 
tained to  the  city  of  Brooklyn.  The  proof  tended  to  estabhsh,  and 
the  referee  found,  that  the  effect  of  the  defendant's  pumping  had 
been  to  permanently  lower  the  water  in  plaintiff's  well  from  seven  to 
eight  feet ;  that  such  lowering  was  caused  by  the  defendant's  pumps 
in  drawing  the  water  from  under  the  plaintiff's  well  and  the  land  on 
which  it  is  situated.  The  evidence  failed  in  support  of  the  averment 
that  there  existed  a  subterranean  stream  of  water  which  supplied  the 

liable.  It  is  simply  because  they  have  done  it  in  factj  they  have  done  it 
by  their  works,  and  it  cannot  be  charged  to  extraordinary  floods.  In  the 
language  of  the  old  books,  'the  defendants'  exaltavunt  stagnum  by  which  the 
plaintiffs  meadow  was  flooded,'  and  they  are  liable  therefor.  Godbolt,  58. 
The  necessity,  motive,  knowledge,  or  care  of  defendants  forms  no  element 
of  this  action.  Not  the  peculiar  mode  or  manner  of  the  injury,  but  the  fact 
of  the  injury  caused  bv  the  dam,  in  any  mode  or  manner,  is  the  ground  of 
"the  action."  Pixley  v.  Clark,  35  N.  Y.  520,  531,  91  Am.  Dec.  72  (1866).  See, 
also,  Wilson  v.  City  of  New  Bedford,  108  Mass.  261,  11  Am.  Rep.  352  (1871). 
When  the  effect  of  the  reservoir  was  to  prevent  the  underground  waters  on 
B.'s  land  passing  along  by  percolation,  A.  was  held  to  have  no  liability. 
Harwood  v.  Benton,  32  Vt.  724  (1860).  But  see  Bassett  v.  Salisbury  Mfg. 
Co.,  43  N.  H.  569,  82  Am.  Dec.  179  (1862).  In  general,  as  to  the  extent  of 
liability  for  damage  caused  by  accumulated  water,  see  Rylands  v.  Fletcher, 
L.  R.  3  H.  L.  330  (1868),  and  other  cases  in  Hepburn's  Cases  on  Torts,  776 
et  seq. 

6  Part  of  the  opinion  is  omitted. 


Ch.  6)  UNDERGROUND   WATERS  131 

plaintiff's  well.  Upon  this  subject  the  proof  was  that  the  interrup- 
tion, by  the  act  of  the  defendant,  was  of  percolating  water,  and  as  a 
consequence  the  water  in  the  well  was  diminished  in  quantity,  as  was 
the  flow  of  the  small  surface  stream  running  to  the  ponds,  which  was 
practically,  if  not  entirely,  dried  up,  and  the  quantity  of  water  in 
the  ponds  diminished.     *     *     * 

In  the  present  case  both  corporations  seek  to  obtain  water  in  a 
similar  manner,  for  a  precisely  similar  purpose ;  i.  e.  for  transportation 
and  sale.  Neither  party  intends  to  make  use  of  its  land  for  any  other 
purpose  than  will  facilitate  the  gathering  and  distribution  of  water. 
In_this_respect  their  rights  are  equal,  one  as  great  as  the  other;  and 
we  see  no  reason  why  the  rule  should  not  be  applicable  as  would 
apply  in  case  either  owner  desired  to  improve  its  land  for  purposes 
of  use.  Then,  as  we  have  seen,  neither  party  would  be  liable  for  the 
diversion  of  percolating  water,  because  each  is  engaged  in  the  exercise 
of  a  legal  right,  and  the  rights  of  each  are  equal  in  the  use  and  enjoy- 
ment of  the  land.  When  both  seek  to  use  their  land  for  exactly  the 
same  purpose,  and  neither  seeks  to  improve  it  for  the  purpose  of  bene- 
ficial enjoyment,  but  to  make  a  profit  from  the  business  carried  on,  the 
right  to  such  use  must  also  be  equal.  Under  such  circumstances,  if  one 
gets  more  than  the  other  we  think  there  can  be  no  more  ground  of  com- 
plaint than  would  exist  if  both  sought  to  improve  their  own  land,  and 
one  secured  more  than  the  other,  or  one  was  damaged  and  the  other 
not.  As  applied  to  such  obligations,  the  doctrine  of  reasonable  use 
and  relative  rights  has  never  been  adopted  by  any  of  the  courts  in  this 
state,  nor  in  any  other  state,  so  far  as  our  research  has  discovered, 
except  in  New  Hampshire.  We  are  not  able  to  see,  therefore,  that 
the  act  of  the  defendant  has  infringed  upon  any  legal  right  which  the 
plaintiff  possessed.  So  far  as  the  diversion  of  the  small  brook  is  con- 
cerned, we  do  not  think  that  the  facts  warrant  its  separation  from 
the  rule  applicable  to  percolating  water.  There '  was  little  proof  to 
show  that  its  source,  character,  or  use  was  such  as  to  make  the  rule  of 
the  Smith  Case  applicable.  It  is  not  every  rivulet  or  small  stream  to 
which  such  rule  can  be  applied,  as  it  is  evident,  if  such  were  the  rule, 
then  an  adjoining  owner  might  be  unable  to  improve  his  property,  or 
might  improve,  and  find  himself  liable  for  exercising  his  legal  right. 
The  destruction  must  be  unreasonable  when  the  rights  of  both  parties 
are  considered,  and,  as  applied  here,  we  think  it  was  not  sufficient  to 
create  a  subject-matter  of  legal  damage. 

These  views  call  for  a  reversal  of  the  judgment.'^ 

7 Ace:  When  neither  party  used  a  pump.  Ocean  Grove  v.  Asbury  Park, 
40  N.  J.   Eq.  447,  3  Atl.  108   (1SS5). 

A.  had  a  natural  mineral  spring,  the  waters  of  which  he  bottled  and  sold. 
B.  installed  a  pump  and  pumped  the  waters,  extracted  the  carbonic  acid  ga.s, 
which  he  sold,  and  let  the  waters  go  to  waste.  This  pumping  diminished  the 
waters  in  A.'s  spring,  to  his  damage.  Held,  A.  may  enjoin  B.  Hathom  v. 
Natural  Carbonic  Gas  Co..  194  N.  Y.  326,  87  N.  E.  504,  23  L.  R.  A.  (JN.  S.) 
436,  128  Am.  St.  Rep.  555,  16  Ann.  Cas.  989  (1909). 


132  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part  1 


KINNAIRD   V.   STANDARD  OIL   CO. 

(Court  of  Appeals  of  Kentucky,  1S90.     89  Ky.  468,  12  S.  W.  937,  7  L.  R.  A. 
451,  25  Am.   St.    Rep.  545.) 

Pryor,  J.®  The  appellant,  Kinnaird,  is  the  owner  of  a  small  tract 
of  land  containing  about  four  acres,  lying  adjacent  to  or  within  the 
boundary  of  the  town  of  Lancaster,  in  the  county  of  Garrard.  On  this 
land  is  a  valuable  and  never-failing  spring,  that  appears  upon  the  sur- 
face of  the  ground  at  the  foot  of  a  hill,  and  had  been  used  as  such  for 
a  long  period  of  time.  In  November  of  the  year  1886  the  appellee,  the 
Standard  Oil  Company,  leased  from  the  Kentucky  Central  Railroad 
Company  a  site  upon  which  to  build  a  warehouse  for  the  storage  of  its 
coal  oil.  They  erected  the  warehouse,  and  placed  in  it  their  coal  oil, 
that  leaked  from  the  casks,  and  saturated  the  gr.ound^  both  on  the  in- 
side and  outside  of  the  building.  The  floor  of  the  house  consisted  of 
a  bed  of  cinders  about  12  inches  in  depth,  that  supplied  the  place  of 
plank,  that,  as  the  proof  shows,  would  become  very  inflammable  when 
saturated  with  the  oil.  The  bed  of  cinders,  therefore,  rendered  the 
property  much  more  secure  than  if  a  floor  had  been  laid  in  the  build- 
ing. The  spring  of  the  appellant  is  located  about  200  yards  from  the 
oil-house  of  the  appellee,  with  a  hill  or  rise  in  the  ground  between  the 
two,  and  the  proof  conduces  to  show  that  water  on  the  surface  of  the 
ground  at  the  oil-house  would  naturally  flow  in  an  opposite  direction 
from  the  spring,  because  it  is  lower  than  the  ground  where  the  spring 
emerges  from  the  hill.  After  the  oil  had  been  deposited  in  the  build- 
ing erected  for  that  purpose,  it  is  manifest  that  it  leaked  from  the  casks^ 
and,  being  of  such  a  penetrating  character,  it  passed  into  the  ground^ 
and  polluted  the  water  or  stream  from  which  the  spring  of  appellant 
was  supplied. 

While  it  is  argued  that  the  proof  on  this  subject  is  by  no  means  sat- 
isfactory, we  think  it  apparent  from  the  testimony  that  the  oil  mingled 
with  underground  currents  of  water  that  fed  the  spring  of  the  appel- 
lant, and  caused  the  injury.  The  court  below,  on  hearing  the  testi- 
mony, gave  a  peremptory  instruction  to  the  jury,  on  the  ground  that  no 
action  could  be  maintained  for  contaminating  the  subterranean  water 
that  flowed  into  the  spring  of  the  appellant,  as  the  appellee  had  the 
right,  in  the  exercise  of  its  legitimate  business,  to  build  the  house,  and 
store  the  oil  within  it,  on  its  own  land,  although  the  property  of  its 
neighbor  was  injured  by  it,     *     *     * 

It  seems  to  us,  after  a  careful  review  of  the  authorities  referred  to 
by  counsel  for  the  corporation,  all  of  which  are  entitled  to  great  weight, 
that  there  is  a  manifest  distinction  between  the  right  of  the  owner  of 
land  to  use  the  under-ground  water  upon  it,  that  originates  from  per- 
colation or  is  found  in  hidden  veins,  and  the  right  to  contaminate  it 

8  Part  of  the  opinion  is  omitted. 


Ch.  G)  UNDERGROUND    WATERS  133 

SO  as  to  injure  or  destroy  the  water  when  passing  to  the  adjoining  land 
of  his  neighbor. 

It  is  a  famihar  doctrine  that  one  must  so  use  his  property  as  not  to 
injure  his  neighbor,  and  because  the  owner  has  the  right  to  make  an 
appropriation  of  all  the  under-ground  water,  and  thus  prevent  its  use  by 
another,  he  has  no  right  to  poison  it,  however  innocently,  or  to  con- 
taminate it,  so  that  when  it  reaches  his  neighbor's  land  it  is  in  such  con- 
dition as  to  be  unfit  for  use  either  by  man  or  beast.  One  may  be  en- 
titled by  contract  with  his  neighbor  to  all  the  water  that  flows  in  a 
stream  on  the  surface  that  passes  through  the  land  of  both,  and,  while 
he  can  thus  appropriate  it,  he  has  no  right  to  pollute  the  water  in  such 
a  manner  as,  when  it  passes  to  his  neighbor,  its  use  becomes  dangerous 
or  unhealthy  to  his  family,  or  to  the  beast  on  his  farm.  As  soon  as 
the  water  leaves  the  land  of  the  one  who  claims  the  right  to  use  it,  and 
runs  on  the  land  of  another,  the  latter  has  the  same  right  to  appropriate 
it,  and,  if  property,  it  then  becomes  as  much  the  property  of  the  last 
as  the  first  proprietor.  The  owner  of  land  has  the  same  right  to  the  ^^  ,^^., 
use  and  enjoyment  of  the^aii*  that  is  around  and  over  his  premises  as  jt!^ t 
he  has  to  use  and  enjoy  the  water  under  his  ground.  He  is  entitled  to 
the  use  of  what  is  above  the  ground  as  well  as  tliat  below  it,  and  still 
it  will  scarcely  be  insisted  that  he  can  poison  the  atmosphere  with  nox- 
ious odors  that  reach  the  dwelling  of  his  neighbor,  to  the  injury  of 
the  health  of  himself  or  family.  If  not,  we  see  no  reason  why  he 
should  be  permitted  to  so  contaminate  the  water  that  flows  from  his 
land  to  his  neighbor's,  producing  the  same  results,  and  still  escape  lia- 
bility for  the  damages  sustained,  and  whether  the  water  escapes  the 
one  way  or  the  other  is  immaterial. 

The  simple  question  is,  can  the  owner,  with  a  knowledge  of  the  pene- 
trating character  of  its  oil,  and  the  effects  following  its  leakage,  store 
large  quantities  of  it  near  the  spring  of  the  plaintiff,  when  the  oil  is 
seen  in  puddles  outside  of  the  building,  the  result  of  leakage  of  the 
casks  on  the  inside,  and  resist  the  claim  of  the  plaintiff'  on  the  ground 
that  it  did  not  know  the  water  was  affected  by  it?  The  injury  has  been 
done,  and  can  it  be  said  that  it  presents  a  case  of  damnum  absque  in- 
juria?    We  think  not.     *     *     '^ 

The  entire  dominion  of  the  defendant  over  its  property  in  the  pres- 
ent case  is  undenied,  but  it  had  no  right,  while  enjoying  its  use,  al- 
though in  a  legitimate  way,  to  violate,  by  the  manner  of  its  use,  the 
jights  of"6thers.  It  seems  to  us  unreasonable  to  adjudge  that  the  erec- 
tion  an3"operatron  of  gasworks,  or  buildings  for  the  storage  of  oil,  with 
the  noxious  and  injurious  substances,  by  reason  of  the  deposit  on  the 
surface  permeating  the  ground,  and  injuring  or  destroying  the  taste 
or  use  of  water  belonging  to  and  on  the  property  of  others,  is  such  a 
legitimate  use  of  one's  property,  and  his  dominion  over  it,  as  to  pre- 
clude any  recovery  for  an  injury  to  the  property  of  his  neighbor,  how- 
ever great,  and  to  require  a  notice  that  the  injury  has, been  inflicted  be- 
fore the  action  can  be  maintained  would  be  to  destroy  the  theory  or 


134  RIGHTS   INCIDENTAL   TO   POSSESSION  (Part   1 

the  principle  upon  which  a  recovery  in  the  case  is  permitted.  It  is  ar- 
gued that  the  appellee  was  ignorant  of  the  existence  of  the  nuisance  or 
injury  to  appellant's  spring,  and  had  no  right  to  suppose  that  its  oil 
was  affecting  the  water  in  the  spring  of  the  plaintiff.  This  may  be  so, 
and  still  the  defendant  is  responsible  for  the  injury,  although  it  was 
not  aware  that  its  neglect  in  permitting  the  oil  to  leak  from  the  casks, 
and  stand  in  pools  outside  the  building,  had  or  would  work  an  injur}' 
to  the  plaintiff.  If  a  nuisance,  whether  neglect  or  not,  the  appellee  is 
liable. 

We  have  assumed,  in  the  consideration  of  the  questions  presented, 
that  the  injury  complained  of  resulted  from  the  manner  in  which  the 
oil  was  kept  in  the  store-house  of  the  defendant,  but  we  are  not  to  be 
understood  as  taking  that  question  from  the  jury  on  the  return  of  the 
case.     *     *     * 

Judgment  reversed  and  remanded,  with  directions  to  award  a  new 
trial,  and  for  proceedings  consistent  with  this  opinion.® 

9Acc.:  Tenuant  v.  Goldwin,  1  Salk.  360  (1704);  Ballard  v.  Tomlinson,  L. 
R.  29  Ch,  Div.  115  (1SS5) ;  Ball  v.  Nye,  99  Mass.  5S2,  97  Am.  Dec.  56  (1S6S). 
See  Patrick  v.  Smith,  75  Wash.  407,  134  Pac.  10T6,  4S  L.  R.  A.  (N.  S.)  740 
(1913). 

The  defendant  drove  a  gas  well  on  its  own  land  about  50  feet  from  the 
plaintiff's  spring.  As  a  result  the  spring  was  affected  and  rendered  worth- 
less by  pollution  from  a  stratum  of  salt  water  encountered  in  sinking  the 
gas  well.  The  plaintiff  was  allowed  to  recover  for  the  damage  so  caused. 
The  court  said:  "The  defendant  is  liable,  not  because  it  has  necessarily  in- 
.iured  the'  plaintiffs  in  the  exercise  of  its  own  legal  right,  but  becaiise  It  has 
injured  them  unnecessarily  by  the  neglect  of  such  reasonable  precautions  as 
might  and  should  have  been  taken  to  protect  them.  According  to  the  testi- 
mony, this  gas  well  was  drilled  with  the  knowledge  of  the  fact  that  salt 
water  was  to  be  encountered ;  that  it  could  be  confined  to  its  own  bed ;  that, 
if  it  was  not,  the  'whole  neighborhood  would  be  spoiled ;'  and  that  there  were 
many  wells  near  by  in  the  borough  of  Glenfield  to  be  affected  by  their  want 
of  care  of  it  in  this  particular.  Yet  no  effort  whatever  was  made  to  shut 
off  the  salt  water,  or  to  avoid  the  destruction  of  the  wells  which  it  was 
practicable  to  save.  The  ground  of  the  defendant's  liability  is  i3e5ligenc'e-::r 
the  want  of  reasonable  care,  under  the  circumstances,  for  the  rights  of  oth- 
ers."    Collins  v.  Chartiers  Val.  Gas  Co.,  139  Pa.  Ill,  21  Atl.  147  (1S91). 

A.  built  a  gas  retort  on  his  own  land,  and  there  deposited  the  refuse  mat- 
ter resulting  from  the  manufacture ;  part  of  it  was  carried  by  _surface_ water 
or  shallow  subsurface  percolation  into  B.'s  well;  part  of  it  worked"  in  to  "ffie' 
ground  and  polluted  the  deeper  underground  waters  by  which  B.'s  well  was 
supplied.  B.  brought  action  for  the  pollution.  Held,  A.  is  liable  for  the 
pollution  resulting  from  the  surface  and  shallow  subsurface  direct  percola- 
tion, but  for  the  indirect  pollution  of  the  well  only  if  his  conduct  is  mali^ 
cious,  and  knowledge  that  these  consequences  are"  being  produced  is  not 
sufficient.     Brown  v.  Illius,  27  Conn.  84,  71  Am.  Dec.  49  (1858). 

See,  also,  Dillon  v.  Acme  Oil  Co.,  49  Hun,  565,  2  N.  Y.  Supp.  2S9  (1888); 
Beatrice  Gas  Co.  v.  Thomas,  41  Neb.  662,  59  N.  W.  925,  43  Am.  St.  Rep.  711 
(1894). 


M- 


Ch.  6)  UNDERGRODND   WATER8  135 

HALE  V.  McLEA. 

(Supreme  Court  of  California,  1879.     53  Cal.  578.) 

[The  plaintiff  and  the  defendant  owned  adjacent  tracts  of  land.  On 
the  plaintiff's  tract  near  the  boundary  was  a  small,  never-failing  spring 
of  water  which  the  plaintiff  used  for  domestic  purposes.  On  defend- 
ant's land  a  line  of  bushes,  usually  found  nowhere  except  on  a  water 
course,  extended  up  to  the  boundary  line  at  the  point  near  which  the 
spring  appeared.  The  defendant,  on  his  own  land  and  just  inside  the 
boundary,  began  at  some  distance  from  the  line  of  bushes  and  at  right 
angles  to  it  a  trench,  which  deepened  to  a  depth  of  nine  feet  where  it 
intercepted  the  line  of  bushes.  At  this  point  a  stream  of  water  made 
its  way  into  the  trench  and  was  piped  away  by  the  defendant  to  his 
house,  where  part  of  it  was  used  and  the  rest  allowed  to  go  to  waste. 
Immediately  after  this  was  done  the  plaintiff's  spring  ceased  to  flow 
and  has  since  remained  dry.  The  defendant  was  not  actuated  by  mal- 
jce.  The  plaintiff  brought  action  for  the  diversion  of  the  water.  He 
had  judgment  below  and  defendant  appealed.]^" 

CrockKTT,  J.  An  examination  of  the  English  and  American  deci- 
sions on  the  questions  of  law  involved  in  this  appeal  leads  us  to  the  con- 
clusion that,  on  the  facts  admitted  by  the  pleadings  or  found  by  the 
court,  the  right  of  the  defendant  as  against  the  plaintiff  to  use  the  wa- 
ter of  the  subterranean  stream,  which  is  the  subject  of  the  action,  is 
at  most  no  greater  than  if  it  was  a  surface  stream,  on  which  the  de- 
fendant was  the  upper  and  the  plaintiff  a  lower  riparian  owner.  Test- 
ed by  this  rule,  the  utmost  that  can  be  claimed  for  the  defendant  on  the 
facts  is,  that  he  is  entitled  to  take  from  the  stream  as  much  water  as 
he  needs  Jor  watering  his  cattle  and  for  domestic  uses,  such  as  cook- 
ing, washing,  and  the  like,  leaving  the  surplus  to  flow  to  the  spring  of 
the.4ilaintiff_in  its  natural  channel.  But. the  findings  show  that  the  de- 
fendant has  diverted  the  whole  body  of  the  stream  through  pipes,  in 
such  a  manner  that  no  portion  of  the  water  can  reach  the  spring ;  and 
the  surplus  at  the  commencement  of  the  action  was  running  to  waste, 
as  appears  from  the  admissions  in  the  pleadings.  If  it  were,  a  surface^ 
stream,  the  plaintiff  would  be  entitled  to  have  it  flow  to  and  across  his 
lands,  in  its  natural  channel,  subject  only  to  the  right  of  the  defend- 
ant to  use  so  much  of  the  water  as  is  necessary  to  supply  his  natural  or 
primary  wants  as  above  indicated;  nor,  on  the  facts  found,  can  the 
cletendant  exercise  any  greater  right  in  respect  to  a  subterranean 
stream.  Assuming,  therefore,  that  the  rights  of  the  defendant  are 
precisely  the  same  as  though  it  was  a  surface  stream,  he  has  exceeded 
them  by  diverting  the  whole  body  of  the  water  from  its  natural  chan- 
nel, instead  of  allowing  the  surplus  to  flow  to  the  spring  in  its  accus- 
tomed bed. 

10  The   statement   of   facts    is    rewritten    and    the    concurring   opinion    ot 
Rhodes,  J.,  is  omitted. 


136  RIGHTS  INCIDENTAL  TO  POSSESSION  (Part  1 

But  the  exigency  of  the  case  does  not  require  us  to  decide  that  the 
defendant  has  the  same  right  in  respect  to  a  subterranean  stream  as 
though  it  was  a  surface  stream  flowing  across  his  land;  and  our  deci- 
sion is  only  to  the  effect  that,  if  it  be  assumed  his  rights  are  the  same, 
he  has,  nevertheless,  exceeded  them  by  diverting  the  whole  bod)^ of  the 
stream,  instead  of  allowing  the  surplus  to  flow  to  the  spring  in  its  nat- 
ural channel. 

There  is  no  question  in  this  case  involving  the  right  of  a  riparian 
owner  to  the  use  of  water  for  purposes  of  irrigation ;  nor  is  the  point 
before  us  whether  or  not  a  land-owner  may  be  restrained  from  divert- 
ing or  obstructing  the  flow  of  an  underground  current,  running  in  a 
defined  channel  across  his  land,  and  which  supplies  a  spring  or  well  on 
the  adjoining  lands,  if  it  become  necessary  to  divert  or  obstruct  the 
stream  in  the  prosecution  of  the  business  of  mining,  or  any  other  legit- 
imate enterprise  on  his  own  land ;  nor  to  what  extent,  if  at  all,  it  would 
affect  the  question  if  the  underground  current  was  not  known  to  exist 
until  the  fact  was  discovered  in  the  prosecution  of  the  work.  These  are 
grave  questions,  which  the  exigency  of  the  present  case  does  not  re- 
quire us  to  decide. 

Judgment  affirmed. ^^ 


HAGUE  V.  WHEELER. 

(Supreme  Court  of  Pennsylvania,  1893.     157  Pa.  S24,  27  Atl.  714,  22  L.  R.  A. 
141,  37  Am.  St.  Eep.  736.) 

Williams,  J.^^  *  *  *  Jj^  ^j^g  treatment  of  this  case  it  is  a  mat- 
ter of  first  importance  to  get  a  clear  apprehension  of  the  facts  on  which 
the  questions  are  raised.  There  are  two  plaintiffs  who  join  in  the  bill, 
whose  interests,  while  like  in  kind,  are  nevertheless  several  and  dis- 
tinct. There  are  several  defendants,  but  their  interests  appear  to  be 
joint.  The  two  plaintiffs  hold  separate  leases  on  parts  of  tracts  in 
\Varren  and  Foster  counties,  Nos.  5,202,  5,203,  5,207,  and  5,209,  ag- 
gregating about  2,200  acres.  The  gas  company  began  drilling  on  its 
leases  in  1887.  Hag-ue  began  in  1888.  Each  has  a  gas  well  or  wells 
furnishing  gas  in  sufficient  volume  to  enable  the  owner  to  utilize  it  by 
transportation  to  and  sale  in  towns  in  the  vicinity.    The  defendants  are 

11  Ace:  Keeney  v.  Carillo,  2  N.  M.  480  (1883).  See,  also,  Willis  v.  City  of 
Perry,  92  Iowa,  297,  60  N.  W.  727,  26  L.  R.  A.  124  (1894) ;  Strait  v.  Brown, 
16  Nev.  317,  40  Am.  Rep.  497  (1881) ;  Whetstone  v.  Bowser,  29  Pa.  59  (1857). 
Compare  City  of  Los  Angeles  v.  Hunter,  156  Cal.  603,  105  Pac.  755  (1909). 

A.,  in  mining  on  his  own  land,  unexpectedly  intercepted  an  underground 
stream  that  supplied  a  spring  on  B.'s  land,  used  by  B.  for  domestic  pur- 
poses. By  the  pumping  necessary  to  render  his  mine  workable,  A.  destroyed 
this  stream,  with  the  result  that  the  spring  went  dry.  Held,  B.  has  no 
right  of  action  against  A.  Haldeman  v.  Bruckhart,  45  Pa.  St.  514.  84  Am. 
Dec.  511  (1863).  Ace:  Chase  v,  Silverstone,  G2  Me.  175,  16  Am.  Rep.  419 
(1873). 

12  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Ch.  6)  UNDERGROUND    WATERS  137 

owners  and  lessees  of  part  of  tract  No.  5,207,  which  adjohis  the  lands 
of  the  gas  company,  and  is  not  far  from  the  lands  of  Hague.  In  1890 
they  drilled  a  well  on  their  tract,  and  obtained  gas  in  considerable  vol- 
ume, but  not  sufficient  to  enable  them  to  utilize  it  by  transportation  and 
sale.  They  have  therefore  allowed  it  to  escape  into  the  open  air.  The 
plaintiffs  allege  that  the  "geolo'gical  formation  in  that  locahty"  is  such 
that  the  gas-bearing  sand  rock  underlying  all  these  tracts  and  forming 
the  common  reservoir  or  deposit  from  which  the  gas  is  obtained  "is 
subject  to  drainage  by  the  drilling  of  wells  on  any  part  thereof."  For 
this  reason  they  assert  that  "the  flow  of  gas  from  the  said  well  of  de- 
fendants is  so  great  that  it  will,  if  allowed  to  go  to  waste,  seriously  and 
irreparably  injure  the  wells  of  the  plaintiffs  by  drainage  from  the  lands 
adjoining  and  near  to  said  defendants'  wells.  To  prevent  this  they 
state  that  they  entered  on  the  defendants'  land,  and  at  a  cost  of  about 
$200  shut  in  the  gas  and  closed  the  well.  The  defendants  then  threat- 
ened to  remove  the  cap  or  plug  and  permit  the  gas  to  escape  again  into 
the  air.  Upon  these  facts  the  plaintiffs  asked  the  court  below  to  en- 
join the  defendants  from  removing  the  cap  or  plug  from  the  casing  or 
tubing  in  the  well,  and  from  "permitting  the  gas  therefrom  to  flow  into 
the  air,  or  otherwise  go  to  waste."  The  injunction  was  granted,  and 
from  that  decree  this  appeal  was  taken. 

The  affidavits  show  that  the  defendants  drilled  their  well  in  1890,  ar 
the  suggestion  and  request  of  the  gas  company,  and  that  negotiations 
for  its  purchase  by  the  gas  company  have  been  conducted  at  some 
length,  but  without  resulting  in  a  bargain.  This  fact — that  the  well  in 
controversy  had  been  drilled  at  considerable  cost  by  the  defendants,  at 
the  request  of  the  gas  company — the  learned  judge  rightly  regarded 
as  a  significant  one.  In  the  opinion  filed  by  him,  which  is  an  able  one. 
he  says  that  this  fact  "might  defeat  this  application  so  far  as  the  gas 
company  is  concerned ;"  but  he  regarded  it  as  of  no  consequence  so 
far  as  the  other  plaintiff'  was  concerned,  for  he  immediately  added : 
"But,  as  it  cannot  affect  the  plaintiff"  Hague,  it  is  not  necessary  to  con- 
sider it  at  this  time."  He  then  proceeds  to  state  and  consider  the  ques- 
tion on  which  his  decree  was  based,  upon  a  state  of  facts  such  as  might 
arise  where  an  adjoining  owner  was  guilty  of  malice  or  negligence  in 
the  conduct  of  operations  on  his  land  resulting  naturally  in  injury  to 
his  neighbor.  But  is  this  conclusion  of  the  learned  judge  that  Hague 
stood  on  higher  ground  than  the  gas  company  a  correct  one  ?  The  acts 
complained  of  were  the  drilling  of  the  well  in  1890,  when  the  wells  of 
both  the  plaintiff's  were  in  full  operation,  and  the  subsequent  failure  to 
utilize  or  shut  in  the  gas.  The  drilling  of  the  well  was  accounted  for, 
and  the  suggestion  of  malice  or  negligence  therein  pegatived  by  proof 
that  it  was  done  at  the  instance  of  the  gas  company.  This  company 
had  a  considerable  gas  plant,  and  was  engaged  in  the  supply  of  gas  to 
its  customers  for  fuel.  It  was  interested  in  the  development  of  the 
region,  and  evidently  expected  to  buy  the  defendants'  well  if  it  was  of 
sufficient  size  to  be  capable  of  utilization.    The  defendants  and  the  gas 


138  RIGHTS   INCIDBNTATv   TO   POSSESSION  (Part   1 

company  could  not  agree  upon  the  price  of  the  well  after  it  was  drilled, 
but  the  fact  that  it  was  drilled  at  the  request  of  the  company,  and  not 
of  the  mere  motion  of  the  defendants,  was  an  answer  to  any  allegation 
of  malice  or  negligence  on  the  part  of  Hague  as  well  as  on  the  part  of 
the  company,  since  it  accounted  for  the  act  of  drilling  by  assigning  a 
motive  therefor,  both  lawful  and  neighborly.  It  will  not  do  to  say  that 
an  act  thus  accounted  for  as  to  one  plaintiff  may  be  assumed  to  be  the 
result  of  malice  or  negligence  as  to  the  other,  in  the  absence  of  proof 
to  sustain  the  assertion.  These  plaintiffs  stand  on  common  ground. 
Neither  of  them  can  complain  of  the  defendants  for  the  act  of  drilling 
the  well  on  their  land  on  any  other  ground  than  the  existence  of  malice 
or  negligence.  When  the  act  is  accounted  for  in  such  a  manner  as  to 
show  that  it  was  not  done  with  malice,  or  in  negligence,  but  in  good 
faith,  as  an  act  of  ownership,  and  at  the  solicitation  of  the  gas  com- 
pany, the  character  of  the  act  is  established,  and  as  a  basis  of  relief 
it  falls  out  of  the  case. 

What  have  we  then?  Three  landowners  owning  considerable  hold- 
ings in  the  same  basin,  or  overlying  the  same  gas-bearing  sand  rock, 
each  having  an  open  gas  well  or  wells  on  his  land,  drilled  without  mal- 
ice or  negligence,  in  a  lawful  manner,  and  for  a  lawful  purpose.  Two 
of  these  owners  have  been  able  to  utilize  the  gas  from  their  respective 
lands  and  find  a  market  for  it.  One  of  them  has  not  been  so  fortunate. 
He  has  gas  from  his  well,  but  up  to  the  time  of  the  filing  of  this  bill  he 
has  not  been  able  to  utilize  or  dispose  of  it,  and  his  gas  has  gone  to 
waste  for  that  reason.  His  more  fortunate  neighbors  come  into  a  court 
of  equity,  and  ask  that  he  shall  not  be  pennitted  to  let  his  gas  run,  be- 
cause, while  this  gas  is  his  own,  underlying  his  tract,  and  finding  its 
way  to  the  surface  through  his  well,  it  has  a  tendency  to  drain  the  sand 
rock,  and  so  to  reduce  ultimately  the  flow  of  gas  from  their  wells.  This 
would  be  equally  true  if  the  defendants  were  able  to  utilize  their  gas ; 
yet  it  is  conceded  that  in  that  case  their  right  to  the  gas  from  their  well 
would  be  as  incontestable  as  the  right  of  the  plaintiffs  to  use  the  gas 
from  theirs,  How  is  that  right  lost?  By  their  inability  to  find  a  pur- 
chaser? If  they  can  find  a  purchaser,  or  turn  the  gas  to  any  useful  pur- 
pose, their  right  to  the  gas  that  flows  from  their  well  is  conceded.  If 
they  cannot,  their  right  is  denied.  Their  well  must  be  shut  in,  while 
their  successful  neighbors  drain  the  entire  basin  through  their  open 
wells,  and  receive  pay  for  the  gas.  This  is  a  proposition  to  limit  the 
power  of  the  owner  over  his  own  by  the  use  he  is  able  to  make  of  it. 
If  he  can  sell  his  gas  or  his  oil,  or  turn  it  to  some  practical  purpose, 
his  power  over  it  as  owner  is  unabridged.  If  he  cannot  find  a  purchas- 
er, or  a  practical  purpose  to  which  to  apply  his  yield  of  gas  or  oil,  then 
his  power  as  owner  is  gone.  This  would  be  an  adaptation  to  actual 
business  of  the  spiritual  truth  that  "to  him  that  hath  shall  be  given; 
but  from  him  that  hath  not  shall  be  taken  away,  even  that  which  he 
seemeth  to  have."    *    *•  * 


Ch.  6)  UNPERGROUND    WATERS  139 

An  owner  of  land  may  have  a  deposit  of  coal  under  some  portion  of 
it  so  small  in  extent,  or  with  such  an  inclination,  as  to  make  it  impossi- 
ble for  him  to  mine  through  his  own  tract  without  a  greater  cost  to 
him  than  the  value  of  the  mined  coal  when  brought  to  the  surface.  His 
neighbor  may  have  an  open  mine  that  reaches  it,  and  through  which  it 
could  be  brought  at  a  fair  profit.  These  circumstances  do  not  affect  the 
title  of  the  owner  of  the  coal,  or  confer  any  right  on  the  adjoining  mine 
owner ;  but  it  is  said  that  the  oil  and  gas  are  unlike  the  solid  minerals, 
since  they  may  move  through  the  interstitial  spaces  or  crevices  in  the 
sand  rocks  in  search  of  an  opening  through  vvhich  they  may  es- 
cape from  the  pressure  to  which  they  are  subject.  This  is  prob- 
ably true.  It  is  one  of  the  contingencies  to  which  this  species  of 
property  is  subject.  But  the  owner  of  the  surface  is  an  owner 
downward  to  the  center,  until  the  underlying  strata  have  been  sever- 
ed from  the  surface  by  sale.  What  is  found  within  the  boundaries  of 
his  tract  belongs  to  him  according  to  its  nature.  The  air  and  the  wa- 
ter he  may  use.  The  coal  and  iron  or  other  solid  mineral  he  may  mine 
and  carry  away.  The  oil  and  gas  he  may  bring  to  the  surface  and  sell 
in  like  manner,  to  be  carried  away  and  consumed.  His  dominion  is, 
upon  general  principles,  as  absolute  over  the  fluid  as  the  solid  miner- 
als. It  is  exercised  in  the  same  manner,  and  with  the  same  results. 
He  cannot  estimate  the  quantity  in  place  of  gas  or  oil,  as  he  might  of 
the  solid  minerals.  He  cannot  prevent  its  movement  away  from  him, 
towards  an  outlet  on  some  other  person's  land,  which  may  be  more  or 
less  rapid,  depending  on  the  dip  of  the  rock  or  the  coarseness  of  the 
sand  composing  it ;  but  so  long  as  he  can  reach  it  and  bring  it  to  the 
surface  ij  is  his  absolutely,  to  sell,  to  use,  to  give  away,  or  to  squander, 
as  in  the  case  of  his  other  property.  In  the  disposition  he  may  make 
oTit  he  is  subject  to  two  limitations :  he  must  not  disregard  his  obliga- 
tions to  the  public,  he  must  not  disregard  his  neighbor's  rights.  If  he 
uses  his  product  in  such  a  manner  as  to  violate  any  rule  of  public  pol- 
icy  or  any  positive  provision  of  the  written  law,  he  brings  himself  with- 
in the  reach  of  the  courts.  If  the  use  he  makes  of  his  own,  or  its  waste, 
is  injurious  to  the  property  or  the  health  of  others,  such  use  or  waste 
may  be  restrained,  or  damages  recovered  therefor ;  but,  subject  to  these 
limitations,  his  power  as  an  owner  is  absolute,  until  the  legislature  shall, 
in  the  interest  of  the  public  as  consumers,  restrict  and  regulate  it  by 
statute. 

The  decree  of  the  court  below  is  reversed,  and  the  injunction  is  dis- 
solved.^^ 

13  "The  acts  of  1891  and  1893  are  an  express  recognition  by  the  legislature 
of  tbe  qualified  owuersliip  of  the  conunon  owners  in  the  gas  in  the  common 
reservoir,  and  any  act  therein  forbidden  may  be,  according  to  the  circum- 
stances, the  subject  of  a  suit  at  law  or  a  proceeding  in  equity  by  the  person 
injured,  as  well  as  the  foundation  of  a  public  prosecution.  Independently, 
however,  of  any  statute,  for  the  reason  already  stated,  the  common  owners 
of  the  gas  in  the  common  reservoir,  separately  or  together,  have  the  right 
to  enjoin  any  and  all  acts  of  another  owner  which  will  materially  injure,  or. 


liO  EIGHTS  INCIDENTAL  TO   POSSESSION  (Part  1 

CHAPTER  VII 
RIGHTS  OF  REVERSIONERS 


BAXTER  V.  TAYLOR. 
(Court  of   King's   Bench,   1832.     4   Barn.   &   Adol.   72.) 

*  *  *  At  the  trial  before  Parke,  J.,  at  the  last  assizes  for  the 
county  of  York,  it  appeared  that  the  plaintiff  was  seised  in  fee  of  the 
closes  mentioned  in  the  declaration,  which  he  had  demised  to  tenants ; 
that  the  defendant  had  with  his  horses  and  cart  entered  upon  the  close 
called  Stoney  Butts  Lane ;  and  that  after  notice  had  been  given  him  by 
the  plaintiff  to  discontinue  so  doing,  he  claimed  to  do  so  in  exercise  of 
a  right  of  way.  The  learned  Judge  was  of  opinion,  that  although  that 
might  be  good  ground  for  an  action  of  trespass  by  the  occupier  of  the 
plaintiff's  farm,  it  was  not  evidence  of  any  injury  to  the  reversionary 
estate,  and  therefore  that  the  action  was  not  maintainable;  and  he  non- 
suited the  plaintiff,  but  reserved  liberty  to  him  to  move  to  enter  a  ver- 
dict.    *     *     * 

Taunton,  J.^  I  think  there  should  be  no  rule  in  this  case.  Young 
v.  Spencer,  10  B.  &  C.  145,  is  not  in  point.  That  was  an  action  on  the 
case  in  the  nature  of  waste  by  a  lessor  against  his  own  lessee.  Here 
the  action  is  by  a  reversioner  against  a  mere  stranger,  and_aLvery  dif- 
ferent rule  is  applicable  to  an  action  on  the  case  in  the  nature^f  waste 
brought  by  a  landlord  against  his  tenant,  and  to  an  action  brought  for 
an  injury  to  the  reversion  against  a  stranger.  Jackson  v.  Pesked,  1  M. 
&  S.  234,  shews,  that  if  a  plaintiff  declare  as  reversioner,  for  an  injury 
done  to  his  reversion,  the  declaration  must  allege  it  to  have  been  done 
to  the  damage  of  his  reversion,  or  must  state  an  injury  of  such  per- 
manent nature  as  to  be  necessarily  prejudicial  thereto,  and  the  want  of 
such  an  allegation  is  cause  for  arresting  the  judgment.  If  such  an  al- 
legation must  be  inserted  in  a  count,  it  is  material,  and  must  be  proved. 
Here  the  evidence  was,  that  the  defendant  went  with  carts  over  the  close 
in  question,  and  a  temporary  impression  was  made  on  the  soil  by  the 

whicti  will  involve  the  destruction  of,  the  property  in  the  common  fund,  or 
supply  of  gas."  Manufacturers'  Gas  &  Oil  Co.  v.  Indiana  Natural  Gas  & 
Oil  Co.,  155  Ind.  474,  57  N.  E.  912,  50  L.  R.  A.  768  (1900). 

A.  and  B.,  owners  of  oil  lands,  each  had  a  pump ;  B.'s  being  more  power- 
ful. A.  filed  a  bill  for  an  injunction  against  B.,  alleging  that  by  the  use 
of  B.'s  pump  the  oil  was  being  drawn  away  from  the  strata  of  A.'s  land, 
to  his  great  damage.  Held,  injunction  denied.  Ilo  Oil  Co.  v.  Indiana  Natu- 
ral Gas  &  Oil  Co.,  174  Ind.  635,  92  N.  E.  1,  30  L.  R.  A.  (N.  S.)  1057  (1910). 
See  Kelley  v.  Ohio  Oil  Co.,  57  Ohio  St.  317,  49  N.  E.  399,  39  L.  R.  A.  705, 
03  Am.   St.    Rep.  721    (1897). 

1  The  statement  of  facts  is  abridged  and  the  opinions  of  Patterson  and 
Parke,  JJ.,  are  omitted. 


Ch.  T)  RIGHTS    OF    REVERSIONERS  141 

horses  and  wheels ;  that  damage  was  not  of  a  permanent  but  of  a  tran- 
sient nature  ;  it  was  not  therefore  necessarily  an  injury  to  the  plaintiff's 
reversionary  interest.  Then  it  is  said  that  the  act  being  accompanied 
with  a  claim  of  right,  will  be  evidence  of  a  right  as  against  the  plain- 
tiff, in  case  of  dispute  hereafter.  But  acts  of  that  sort  could  not  oper- 
ate as  evidence  of  right  against  the  plaintiff,  so  long  as  the  land  was 
demised  to  tenants,  because,  during  that  time  he  had  no  present  rem- 
edy by  which  he  could  obtain  redress  for  such  an  act.  He  could  not 
maintain  an  action  of  trespass  in  his  own  name,  because  he  was,  not  in 
^possession  of  the  land,  nor  an  action  on  the  case  for  jn jury  to  the  re- 
version, because  in  point  of  fact  there  was  no  such  permanent  injury 
as  would  Be  necessarily  prejudicial  to  it;  as  therefore,  he  had  no  rem- 
edy by  law  for  the  wrongful  acts  done  by  the  defendant,  the  acts  done 
by  him  or  any  other  stranger  would  be  no  other  evidence  of  right  as 
against  the  plaintiff,  so  long  as  the  land  was  in  possession  of  a  lessee. 
In  Wood  V.  Veal,  5  B.  &  A.  454,  it  was  held,  that  there  could  not  be 
a  dedication  of  a  way  to  the  public  by  a  tenant  for  ninety-nine  years, 
without  consent  of  the  owner  of  the  fee,  and  that  permission  by  such 
tenant  would  not  bind  the  landlord  after  the  term  expired.  I  think 
therefore  that  the  plaintiff  cannot  maintctin  the  present  action;  and 
there  is  not  doubt  sufficient  to  induce  me  to  think  that  there  ought  to  be 
a  rule  nisi  for  a  new  trial. 


SIMPSON  V.  SAVAGE. 

(Court  of  Common  Pleas,  1856.     1  C.  B.  [N.  S.]  347.) 

The  plaintiff'  was  the  owner  of  a  plot  of  ground  in  King's  Lynn,  in 
the  county  of  Norfolk,  upon  which  he  built  several  houses  in  1850, 
which  were  let  to  tenants  at  rents  varying  from  £40  to  i44  per  annum. 
The  defendant  is  an  agricultural  implement  maker  occupying  premises 
consisting  of  workshops  with  a  forge  and  chimney  and  yard  closely  ad- 
joining the  back  yards  of  the  plaintiff's  houses.  The  workshops,  forge, 
and  chimney  were  erected  (not  by  the  defendant)  in  1851,  and  were  a 
few  feet  only  from  the  back  windows  of  the  plaintiff's  houses.  The 
nuisance  complained  of  consisted  in  the  emission  of  smoke  from  the 
forge  chimney,  to  such  an  extent  that  gre^t  quantities  of  soot  entered 
the  windows  in  the  rear  of  the  plaintiff's  houses,  dirtying  and  spoiling 
the  furniture  in  the  rooms,  and  of  noises  from  the  hammering,  and 
offensive  smells  from  the  burning  of  old  wood  in  the  yard.  It  was 
proved,  on  the  part  of  the  plaintiff,  that,  in  consequence  of  the  nui- 
sance, which  was  of  a  serious  character,  some  of  the  plaintiff's  tenants 
had  given  him  notice  to  quit  (though  it  did  not  appear  that  any  of 
them  had  actually  quitted) ;  and  that,  in  consequence  of  the  nuisance, 
the  plaintiff's  houses  would  not  realize  as  much  rent  as  they  would 
otherwise  have  done. 


142  RIGHTS  INCIDENTAL  TO   POSSESSION  (Part   1 

CrEsswell,  J.^  This  was  an  action  for  an  injury  to  the  plaintiff's 
reversion  by  erecting  a  manufactory  on  land  adjoining  the  plaintiff's 
houses,  and  causing  smoke  to  issue  from  a  chimney,  and  making  loud 
noises.  The  plaintiff  also  complained  of  a  nuisance  arising  from  the 
lighting  of  wood  fires  in  the  yard  adjoining  the  factory. 

The  cause  was  tried  before  Lord  Campbell,  at  the  last  assizes  for 
Norfolk,  when  his  lordship  ruled  that  the  nuisances  merely  of  a  tem- 
porary nature,  such  as  the  wood  fires  and  the  noises,  would  not  sup- 
port the  action :  but,  with  reference  to  the  smoke  issuing  from  the  foun- 
dry chimney,  he  thought  the  case  distinguishable  from  Mumford  v.  The 
Oxford,  Worcester,  and  Wolverhampton  Railway  Company,  1  Hurlst. 
&  Norm.  34,  and  that  there  was  evidence  to  go  to  the  jury  to  prove 
injury  to  the  reversion :  but  he  reserved  leave  to  the  defendant  to  move 
to  enter  a  nonsuit,  if  the  court  should  be  of  opinion  that  there  was  no 
injury  to  the  reversion. 

A  rule  nisi  having  been  obtained  accordingly,  cause  was  shown  in 
the  course  of  the  last  term,  before  my  Brothers  Williams  and  Crowder 
and  myself. 

The  only  point  reserved  for  our  consideration,  was,  whether  there 
was  evidence  for  the  jury  of  any  injury  to  the  reversion  in  the  prem- 
ises of  which  the  plaintiff  was  owner,  but  not  the  occupier,  they  being 
let  to  tenants.     *     *     * 

On  the  argument,  it  was  insisted  that  the  injury  done  by  the  defend- 
ant need  not  be  of  a  permanent  nature,  and  that  it  was  sufficient  if  prov- 
ed to  be  of  such  a  description  as  would  cause  the  reversion  in  the  prem- 
ises to  sell  for  a  smaller  sum  if  brought  into  the  market. 

After  considering  the  authorities,  we  are  of  opinion,  that,  since,  in 
order  to  give  a  reversioner  an  action  of  this  kind,  there  must  be  some 
injury  done  to  the  inheritance,  the  necessity  is  involved  of  the  injury 
being  of  a  permanent  character. 

The  earliest  instances  of  such  an  action  are,  cutting  trees,  subverting 
the  soil,  and  erecting  a  dam  across  a  stream  so  as  to  cause  it  to  flow 
over  the  plaintiff's  land.  In  the  two  former  cases,  the  thing  done  was 
not  removable  or  remediable  during  the  term  :  in  the  third,  it  was ;  but, 
being  of  a  permanent  character,  it  was  to  be  assumed  that  it  would  re- 
main, and  therefore  was  treated  as  an  injury  to  the  inheritance. 

The  decision  in  Jessel  v.  Gifford,  4  Burr.  2141,  falls  within  the  same 
principle.  A  window  was  obstructed;  the  obstruction  was  of  a  per- 
manent character,  and  would  remain,  unless  something  was  done  to 
remedy  the  evil.  Tucker  v.  Newman,  11  Ad.  &  E.  40  (E.  C.  L.  R. 
vol.  39),  3  P.  &  D.  14,  belongs  to  the  same  class. 

Now,  the  building  erected  in  this  case  did  not  injure  the  plaintiff's 
mheritance :  but  it  is  said  that  the  use  made  of  it  did.  The  real  sub- 
ject-matter of  complaint,  therefore,  is,  not  the  erection  of  the  building, 
but  causing  smoke  to  issue  from  it.    If  the  fires  had  not  been  made  by 

'*  Part  of  the  opinion  is  omitted. 


Ch.  7)  EIGHTS    OF    REVERSIONERS  143 

the  defendant,  he  could  not  have  been  sued  for  an  injury  either  to  the 
possession  or  the  inheritance :  Rich  v.  Basterfield,  4  C.  B.  783  (E.  C. 
L.  R.  vol.  56).  Now,  making  tlie  fires  and  causing  smoke  to  issue, 
was  not  an  act  of  a  permanent  nature.  It  is  very  like  the  case  of  Bax- 
ter V.  Taylor,  4  B.  &  Ad.  12  (E.  C.  L.  R.  vol.  24),  where  a  person 
trespassed,  asserting  a  right  of  way;  and  not  distinguishable  from 
Mum  ford  v.  The  Oxford,  Worcester,  and  Wolverhampton  Railway 
Company,  where  the  action  was  brought  against  the  defendants  as  oc- 
cupiers of  certain  sheds,  for  making  noises  therein,  which  caused  the 
plaintiff's  tenants  to  give  notice  to  quit. 

The  real  complaint  by  the  reversioner  is,  that  he  fears  the  defendant, 
or  some  other  occupier  of  the  adjoining  premises,  will  continue  to  make 
fires  and  cause  smoke  to  issue  from  the  chimney :  and,  if  the  reversion 
would  sell  for  less,  that  is  not  on  account  of  anything  that  has  been 
done,  but  of  the  apprehension  that  something  will  be  done  at  a  future 
time. 

According  to  the  authorities,  we  feel  bound  to  say  that  this  is  not 
such  an  injury  as  will  enable  the  reversioner  to  maintain  an  action.  The 
rule  for  entering  a  nonsuit  must,  therefore,  be  made  absolute. 

Rule  absolute.3  ^  ;^^    B.^f  6^- 

GREEN  V.  SUN  CO. 
(Superior  Court  of  Pennsylvania,  1907.     32  Pa.  Super.  Ct.  521.) 

Trespass  to  recover  damages  for  injuries  to  real  estate  resulting  from 
fumes  from  an  oil  refinery. 

Henderson,  J.*  One  of  the  plaintiff's  complaints  was  that  the 
defendant  wrongfully  and  injuriously  constructed  its  works  and  neg- 
ligently maintained  and  carried  on  its  business,  as  a  result  of  which  the 
plaintiff's  buildings  were  damaged.  No  evidence  of  negligence  was  in- 
troduced, however,  the  plaintiff  relying  on  testimony  tending  to  estab- 
lish the  existence  of  a  nuisance  in  the  business  which  the  defendant 
conducted.  There  is  also  an  averment  that  the  atmosphere  was  made 
unwholesome  and  injurious  to  the  plaintiff's  tenants.  The  latter  charge, 
however,  was  eliminated  from  the  case  by  the  court,  together  with  all 
the  evidence  relating  thereto,  the  issue  being  confined  to  the  inquiry 
whether  the  defendant  maintained  a  nuisance  and  whether  that  nui- 
sance was  injurious  to  the  buildings  occupied  by  the  plaintiff's  ten- 
ants.    *     *     * 

The  plaintiff  does  not  seek  to  recover  damage  for  the  injury  to  the 
tenants.  His  allegation  was  that  there  was  a  physical  injury  to  the 
property.  The  damage  was  to  the  freehold  and  not  to  the  tenants'  oc- 
cupancy. For  such  an  injury  the  landlord  may  maintain  an  action  not- 
withstanding the  occcupancy  by  a  tenant.     Devlin  v.  Snellenburg,  132 

3 Ace:     Mumford  v.   Oxford,  etc.,   Ry.   Co.,  1   H.  &  N.  34   (1856);   Mott  v. 
Shoolbred,  L.  R.  20  Eq.  Cas.  22  (1875). 
*  The  stateuaent  of  facts  and  part  of  ttie  opinion  are  omitted. 


144  RIGHTS    lAXIDEXTAL   TO   POSSESSION  (Part   1 

Pa.  186,  18  Atl,  1119.  There  is  no  evidence  that  the  tenants  were 
hound  to  repair,  and  certainly  no  obhgation  rested  on  them  to  make 
reparation  of  the  injury  alleged  to  have  been  caused  by  the  defendant. 
Earle  v.  Arbogast,  180'Pa.  409,  36  Atl.  923.  The  plaintiff  is  none  the 
less  entitled  to  recover  even  if  he  has  not  actually  made  the  repairs. 
The  value  of  his  property  is  reduced  to  the  extent  of  the  injury  wheth- 
er he  should  determine  to  apply  the  amount  of  his  damages  to  the  im- 
provement of  his  property  or  keep  the  money  in  his  pocket.  If  his 
property  had  been  wholly  destroyed  by  the  unlawful  and  injurious  act 
of  the  defendant  he  would  be  entitled  to  compensation  whether  he  re- 
built or  not. 

The  declaration  charged  negligence,  but  it  was  not  necessary  that 
the  plaintiff  offer  evidence  in  support  of  this  averment.  A  nuisance  is 
sufficiently  charged  and  the  question  of  negligence  is  not  necessarily 
involved.  Hauck  v.  Tidewater  Pipe  Line  Co.,  153  Pa.  366,  26  AH. 
644,  20  L.  R.  A.  642,  34  Am.  St.  Rep.  710;  Stokes  v.  Penna.  R.  R.  Co., 
214  Pa.  415,  63  Atl.  1028.     *     *     * 

The  assignments  are  all  overruled  and  the  judgment  affirmed.^ 

5 Ace:     Shelf er  v.  City  of  London  Electric  Co.,  [1895]  1  Ch.  287. 

Plaintiff  complained  "that  the  defendant  by  means  of  certain  erections  and 
obstructions  caused  the  water  of  a  certain  stream  to  run  out  of  its  natural 
course,  into  and  upon  land  of  plaintiff,  and  to  overflow  same,  and  thereby 
rotted,  spoiled,  damaged,  washed  away,  and  destroyed  the  grass  and  herbage 
of  the  plaintiff  and  also  made  the  land  boggy,  miry  and  rotten,  and  greatly 
deteriorated  in  value:  by  means  of  which  plaintiff  has  been  injured  in  his 
reversionary  estate  of  said  lands."  The  court  held  this  declaration  to  be 
good  on  demurrer  and  said: 

"If  the  plaintiff  had  only  averred  that  the  defendant  had  turned  the  wa- 
ter upon  and  overflowed  his  land,  and  thereby  rotted,  destroyed,  and  washed 
away  the  grass  there  being  and  growing,  he  might  have  proved  on  the  trial 
such  an  extent  of  injury  to  his  land  and  meadow  grounds,  as  seriously  af- 
fected his  reversionary  estate.  It  is  no  argument  to  say  that  the  tenant,  if 
the  action  had  been  brought  by  him,  might  have  declared  in  the  very  lan- 
guage used  in  this  declaration.  This  is  certainly  true.  There  are  many 
injuries  that  may  be  done  to  lands,  which  altect,  as  well  the  landlord  as 
the  tenant,  and  for  which  the  former  may  have  an  action  on  the  case,  and 
the  latter  an  action  of  trespass ;  and  in  which  the  wrongful  acts  may  be, 
and  sometimes  must  be,  described  in  the  same  way.  For  instance,  digging 
up  the  soil,  cutting  down  fruit,  or  timber  or  ornamental  trees ;  or  breaking 
or  destroying  the  dwelling  house ;  and  in  short,  whatever  amounts  to  waste, 
is  an  injury  to  both,  and  may  be  described  by  both  in  the  same  way.  There 
are  other  injuries  that,  from  their  very  nature,  can  only  be  prejudicial  to 
the  possession ;  -such  as  cutting  or  trampling  down  the  grass  or  grain  grow- 
ing ;  or  gathering  and  carrying  away  fruit  from  the  orchard ;  and  there- 
fore, if  the  landlord  were  to  declare  for  such  injury,  it  would  be  had  on 
demurrer,  even  though  he  should  aver  that  it  was  done  to  the  prejudice  of 
his  reversion,  since  such  averment  would  be  inconsistent  with,  and  in  fact 
contradictory  to  his  own  statement  of  the  trespass."  Potts  v.  Clarke,  20  iN, 
J.  Law,  536,  543  (1845). 

Injuries  to  the  reversion  were  found  in  Tucker  v.  Newman,  11  Adol.  &  El. 
40  (1839) ;  Kankakee  &  S.  R.  Co.  v.  Horan,  131  111.  288,  23  N.  E.  621  (1890) ; 
Arneson  v.  Spawn,  2  S.  D.  269,  49  N.  W.  1066,  39  Am.  St.  Rep.  783  (1S91). 

The  reversioner  was  denied  relief  in  Cooper  v.  Grabtree,  20  Ch.  Div.  589 
(1882). 

A.  was  the  owner  of  a  mill  and  mill  privilege  on  a  certain  river.  B.  had 
constructed  a  dam  above  A.'s  mill  for  the  purpose  of  raising  a  pond  as  a 


Ch.  7)  EIGHTS    OF    REVERSIONERS  145 

PARK  V.  WHITE. 
(Chancery  Division  of  the  High  Court  of  Ontario,  1S93.     23  Ont.  611.) 

This  was  an  appeal  by  the  defendants  from  the  judgment  at  the  trial, 
in  an  action  brought  by  William  Park  against  Thomas  L.  White  and 
Sarah  White,  his  wife,  to  restrain  a  nuisance  occasioned  by  smells 
arising  from  privy  pits  located  near  the  walls  of  the  plaintiff's  house. 

•It  appeared  that  about  seven  years  ago,  when  the  locality  was  not  so 
thickly  settled,  the  defendants  built  a  row  of  cottages  on  the  rear  of 
their  lot,  and  common  closets  were  constructed  for  the  use  of  the  oc- 
cupants. Subsequently  the  plaintiff  became  the  owner  of  the  lot  im- 
mediately adjoining,  and  constructed  a  row  of  cottages  with  the  rear 
wall  18  inches  from  the  privy  pits.  The  plaintiff  complained  that  the 
pits  were  a  nuisance  to  the  occupants  of  the  cottages  belonging  to  him; 
and  that  some  of  his  tenants  had  left,  and  some  were  threatening  to 
leave  on  account  of  the  bad  smells  arising  therefrom.     *     *     * 

Boyd,  C.**  The  plaintiff's  pleadings  are  grounded  on  his  ownership 
of  jand_jwhich_js  injuriously  affected  by  disagreeable  and  noxious 
_odQiu::a  arising  from  privy  pits  on  the  land  of  the  defendant.  He  does 
not  sue  as  reversioner,  but  alleges  that  his  tenants  have  from  time  to 
time  vacated  his  houses,  and  that  by  the  frequent  remarks  of  tenants, 
his  houses  are  getting  an  ill  repute,  and  that  he  fears  he  will  be  unable 
to  rent  them,  all  on  account  of.  the  filthy  condition  and  foul  smells  of 
and  from  the  said  privy  pits,  and  he  further  alleges  that  the  tenants 
now  in  occupation  threaten  to  leave  if  the  said  nuisance  is  not  abated. 

The  chief  ground  of  contention  was  on  the  issue,  nuisance  or  no  nui- 
sance, and  the  plaintiff  has  succeeded.  Questions  were  submitted  and 
answered,  and  on  the  answers  merely  and  only,  the  defendant  now 
moves  against  the  judgment  directed  to  be  entered  for  the  plain- 
tiff     *     *     * 

It  is  urged  again  that  the  plaintiff  had  no  right  of  action.  Some  cases 
were  cited  tojhe  effect  that  a  reversioner  pure  and  simple  would  have 
no  right  of  action  in  respect  of  a  mere  temporary  nuisance.  The  most 
Inotable  case  on  this  head  is  Jones  v.  Chappel,  L.  R.  20  Eq.  539.     But 

storage  reservoir  for  its  waterworlvs.  The  water  was  talien  from  tliis  dam 
by  the  conduits  of  B.  vinder  a  claim  of  right  and  to  such  an  extent  as  to 
damage  the  mill  privilege.  In  an  action  of  tort  by  A.  against  B.  for  so  di- 
verting the  water,  held,  although  A.'s  mill  is  in  possession  of  a  tenant,  A. 
can  recover  for  such  constant  withdrawals  of  water  as  an  injury  to  his  re- 
version. Lund  v.  City  of  New  Bedford,  121  Mass.  286  (1876):  Ace:  Heil- 
'  bron  v.  Last  Chance  Water  Ditch  Co.,  75  Cal.  117,  17  Pac.  65  (1888). 

Where  there  is  a  damage  to  the  reversion,  as  by  cutting  down-  trees, 
where  the  land  is  in  the  possession  of  a  tenant  at  will,  the  reversioner  may 
maintain  trespass  quare  clausum  f regit.  Starr  v.  Jackson,  11  Mass.  Sl'J 
(1814). 

6  The  statement  of  facts  is  abridged  and  part  of  the  opinion  of  Boyd,  C, 
and  the  opinion  of  Meredith,  J.,  are  omitted. 

BiG.RlGHTS — 10 


146  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part   1 

the  neat  point  in  that  was,  the  plaintiffs  in  an  action  to  restrain  a  nui- 
sance of  a  temporary  nature  must  be  the  occupiers,  and  not  merely  the 
reversioners  of  the  property  affected  by  the  nuisance.  Had  a  tenant 
been  added  as  coplaintiff,  the  action  would  have  succeeded.  This  course 
was  taken  during  the  course  of  the  trial  in  Broder  v.  Saillard,  2  Ch. 
D.  at  page  698,  and  the  trial  judge  in  this  case  held  in  suspense  a  simi- 
lar application,  which  he  did  not  deem  necessary  to  act  upon.  But  as 
a  matter  of  precaution  the  permission  to  amend  should  now  be  given 
as  the  whole  matter  in  controversy  was  as  to  the  existence  of  a  nui- 
sance. 

I  should  deem  the  nuisance  here  to  be  not  of  a  temporary  character, 
but  of  such  a  recurring  nature  as  to  be  practically  continuous  and  per- 
manent. Draper  v.  Sperring,  4  L.  T.  N.  S.  365.  If  so,  the  reversion 
is  prejudicially  affected  because  the  injury  was  likely  to  last  in  the 
ordinary  course  of  things  down  to  the  time  when  the  reversion  would 
come  into  possession.  In  fact,  it  was  said  that  some  of  the  short  ten- 
ancies had  determined ;  and  as  to  the  damages  given,  it  was  in  respect 
of  a  vacant  house. 

The  frame  of  action  without  amendment  seems  justified  by  such  cas- 
es as  Wilson  v.  Townsend,  1  Dr.  &  Sm.  324;  Tucker  v.  Newman,  11 
A.  &  E.  40;  Swain  v.  The  Great  Northern  R.  W.  Co.,  4  DeG.  J.  &  S. 
at  p.  215;  Smith  v.  Humbert,  2  Kerr  (New  Brunswick)  602;  and 
Cleeve  v.  Mahany,  9  W.  R.  882.  This  last  case  is  similar  to  the  pres- 
ent, and  Kindersley,  V.  C.,  said  "the  plaintiff  had  not  suffered  per- 
sonally, except  that  he  said  he  could  not  let  his  house ;  and  if  that  loss 
ensued  by  reason  of  the  continuance  of  the  operation  (of  brickburning) 
then  he  might  be  entitled  to  the  injunction."    Page  883. 

The  motion  should  be  dismissed  with  costs. '^ 

7  "It  appeared  in  evidence,  as  far  as  I  could  gather,  that  at  the  time  when 
the  bill  was  filed,  but  certainly  shortly  before,  the  two  houses  were  let  to 
weekly  tenants,  and  they  are  both  still  so  let  and  fully  occupied.  Now,  as 
I  understand  the  doctrine  in  Simpson  v.  Savage,  1  C.  B.  (N.  S.)  347  (1856), 
the  landlord  in  such  a  case  cannot  bring  an  action.  The  injury  is  a  tem- 
porary nuisance,  because  the  saws  might  be  stopped  and  the  steam  engine 
might  cease  working  at  any  moment.  It  is  only  an  injury  to  the  occupier, 
and  the  landlord  cannot  bring  an  action,  because  before  his  estate  comes 
into  possession  the  nuisance  may  have  ceased,  or  the  person  committing  it 
may  choose  to  make  it  cease  the  moment  the  estate  comes  into  possession. 

"Another  ground  of  action  on  the  part,  of  the  landlord  might  be  that  the 
existence  of  a  nuisance  of  a  temporary  character  would  render  it  more  diffi- 
cult for  him  to  let  to  a  future  tenant  or  to  sell.  But  that  is  said  not  to 
be  a  good  ground  of  action,  because  the  theoretical  diminution  of  the  value 
of  the  property  cannot  be  taken  into  account,  inasmuch  as  the  purchaser  or 
the  new  occupier  would  have  a  right  to  stop  the  nuisance,  so  that  he  ought 
not  to  give  less  on  that  account  than  he  otherwise  would.  It  appears  to 
me  I  am  not  able  to  overrule  Simpson  v.  Savage,  and  that  the  principles  up- 
on which  it  was  decided  apply  as  much  to  weekly  tenancies  as  to  any  other 
tenancies. 

"But  then  it  is  said  that,  if  that  is  so,  no  relief  at  all  can  be  obtained,  and 
Mr.  Jason  Smith  said  that  there  was  some  doctrine  of  this  court  by  which 
a  weekly  tenant  could  not  have  an  injunction.  So  far  as  I  am  aware,  that 
aas  never  been  decided,  but  I  should  not  find  the  slightest  difficulty  myself, 


Ch.  7)  RIGHTS    OF    REVERSIONERS  147 

MILLER  V.  EDISON  ELECTRIC  ILLUMINATING  CO. 

(Court  of  Appeals  of  New  York,  1906.     184  N.  Y.  17,  76  N,  E.  734.) 

The  plaintiffs,  by  the  institution  of  this  action,  have  sought  to  re- 
strain the  defendant  from'  continuing  a  nuisance,  created  through  the 
maintenance  and  operation  of  a  plant  for  the  supply  of  electric  light 
and  power,  whereby  their  property  in  neighboring  dwelling  houses 
has  been  injuriously  affected.  They,  further,  demanded  judgment  for 
damages  already  sustained.  The  property  was  in  the  occupancy  of 
a  tenant,  holding  under  a  lease  by  the  plaintiffs.  The  trial  court  for- 
mulated its  decision  in  findings  of  facts  and  conclusions  of  law,  and 
the  judgment  recovered  by  the  plaintiffs  thereupon  was  afifirmed  by 
the  Appellate  Division.  The  facts  found,  so  far  as  they  need  to  be 
mentioned,  show  that  the  plaintiffs  became  the  owners  of  the  premises 
in  question  some  years  prior  to  1888;  in  which  year  the  defendant 
constructed,  upon  premises  adjacent  to  those  of  the  plaintiffs,  a  power 
house,  equipped  with  machinery  and  appliances  necessary  for  the  pur- 
pose of  generating  electricity  to  be  supplied  to  the  public  for  lighting, 
or  for  power.  In  1890,  the  plaintiffs  leased  their  property  for  a  term 
of  five  years;  receiving  a  rental  of  $15,000  a  year  and  certain  privi- 
leges. Shortly  prior  to  the  expiration  of  the  term  of  this  lease,  the 
premises  were  again  leased  to  the  same  tenant  for  another  term  of 
five  years  from  May  1,  1895,  at  the  rental  of  $12,000  a  year,  with  the 
reservation  of  the  same  privileges  as  in  the  previous  lease.  In  1900, 
the  premises  were,  again,  leased  at  a  less  rental,  with  the  reservation 
of  some  additional  privileges,  and  with  a  right  to  the  lessors  to  share 
in  the  profits  of  the  hotel  business  conducted  by  the  lessee. 

After  the  construction  of  its  power  house,  the  defendant's  operations 
caused  "soot,  cinders,  ashes,  steam,  or  water  condensing  from  steam," 
to  be  discharged  upon  plaintiffs'  premises.  Noises,  jars,  and  vibrations 
resulted  from  the  operation  of  the  machinery,  which  impaired  the 
peaceful  enjoyment  of  the  premises  and  affected  their  rental  value. 
The  court,  further,  found  that,  as  the  machinery  was  used  at  the  time 
of  the  trial,  no  injury  was  being  worked  to  the  plaintiffs'  property  and 
"that  it  was  improbable  that  it  would  be  so  used  as  to  work  injury  in 
the  future,"  but  that,  as  the  plaintiffs  wert  entitled  to  the  equitable 
relief  prayed  for  when  the  action  was  commenced,  the  court  would  re- 
tain the  case  and  award  to  them  their  damages.  Judgment  was  di- 
rected for  the  plaintiffs  for  such  damages,  in  the  amount  of  $4,500. 
The  court  decided  that  the  plaintiffs  failed  to  establish  that  they  suffer- 
ed any  damage  after  the  year  1900  and,  though  the  rental  for  the 
premises,  reserved  to  them  in  the  new  lease  of  that  year,  was  less  than 

if  an  occupier,  being  a  weekly  tenant,  and  his  landlord   were  to  join  in  a 
suit  to  restraii;i  a  nuisance,  in  granting  them  an  injunction." 

Jessel,  M.  R.,  in  Jones  v.  Chappel,  I..  R.  20  Eq.  Cas.  539,  543  (1875).  See 
Bell  V.  Midland  Ry.  Co.,  10  C.  B.  N.  S.  287  (18G1). 


148  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part   1 

that  for  the  prior  term,  the  difference  could  be  accounted  for  otherwise 
than  by  charging  it  to  the  defendant's  acts.  This  was  explained  in 
the  changed  character  of  the  locality,  and  in  the  fact  that  the  lease 
provided,  not  only  that  the  plaintiffs  should  have  a  share  of  the  profits, 
but  that  they  should  enjoy  greater  privileges  than  formerly.  These 
findings  of  the  trial  court  have  sufficient  support  in  the  evidence. 

CuLLEN,  C.  J",  (after  stating  the  facts).  I  adopt  Judge  Gray's 
statement  of  facts,  and  I  agree  with  him  in  the  position  that  this  action 
was  properly  brought  in  equity,  that  it  was  triable  by  the  court,  and  that 
the  defendant  was  not  entitled  to  a  jury  trial  as  of  right.  I  am  unable, 
however,  to  concur  in  the  view  that  the  plaintiffs  were  properly  award- 
ed damages  for  diminution  in  the  rental  value  of  the  property.  The 
plaintiffs  were  in  possession  of  the  premises  during  no  part  of  the 
period  for  which  damages  have  been  recovered,  but  the  same  were  in 
the  occupation  of  their  tenants  under  a  lease  for  a  term  of  years.  One 
of  these  leases  expired  during  the  existence  of  the  nuisance,  and,  as 
the  trial  court  has  found,  by  reason  of  the  nuisance  the  plaintiffs 
were  compelled  -to  rent  the  premises  for  a  new  term  at  a  reduced  rent. 
It  is  for  this  loss  of  rent  that  damages  have  been  awarded.  The  ques- 
tion as  to  which  party,  the  landlord  or  his  tenant,  is  entitled  to  recover 
for  depreciation  of  the  rental  value  by  the  existence  of  a  nuisance  has 
involved  the  courts  in  much  perplexity.  In  the  elevated  railroad  cases 
it  has  been  settled  that,  in  the  case  of  a  lease  made  after  the  erection 
and  operation  of  the  railroad,  the  landlord,  not  the  tenant,  is  entitled 
to  recover  for  such  depreciation.  Kernochan  v.  N.  Y.  Elevated  R.  R. 
Co.,  128  N.  Y.  559,  29  N.  E.  65. 

In  the  Kernochan  Case  there  is  an  elaborate  discussion  of  the  ques- 
tion by  Chief  Judge  Andrews.  A  careful  analysis  of  the  opinion  of 
the  learned  judge  will  show  that  the  decision  proceeded  on  the  ground 
that  the  elevated  road  was  a  permanent  structure  and  intended  to  be 
so  maintained ;  that  it  was  constructed  in  the  street  under  legislative 
authority ;  and  that  as  ample  authority  was  granted  to  condemn  any 
property  rights  on  which  it  might  trespass,  the  lessor  had  "no  absolute 
remedy  to  compel  the  removal  of  the  structure,  since  the  right  of  con- 
demnation can  at  any  time  be  exercised  by  the  defendants."  The  learn- 
ed judge  said :  "It  is  also  a  necessary  deduction  from  the  circum- 
stances attending  the  making  of  ordinary  leases  of  improved  property, 
executed  after  the  construction  of  the  elevated  railroad,  that  the 
right  to  recover  damages  is  vested  exclusively  in  the  lessor."  To  the 
doctrine  of  that  case  the  court  has  steadily  adhered.  When,  however, 
the  doctrine  was  invoked  to  defeat  the  right  of  a  tenant  to  recover  dam- 
ages against  the  present  defendant  for  the  very  same  acts  which  con- 
stitute a  nuisance  in  the  case  now  before  us,  it  was  held  that  the  rule 
in  the  elevated  railroad  cases  did  not  apply.  In  Bly  v.  Edison  Electric 
111.  Co.,  a  tenant,  hiring  after  the  nuisance  was  created,  recovered  the 
depreciation  in  the  rental  value  of  the  premises. 

The  Appellate  Division,  citing  the  authority  of  the  Kernochan  Case, 


Ch.  7)  RIGHTS    OF    REVERSIONERS  149 

reduced  the  award  to  a  nominal  sum,  holding  that  the  tenant  was  not 
entitled  to  recover  diminution  in  rental  value.  54  App.  Div.  427,  66 
N.  Y.  Supp.  72)7 .  On  appeal  to  this  court  the  judgment  of  the  Appellate 
Division  was  reversed,  though  a  new  trial  was  ordered  because  the 
trial  court  had  awarded  damages  for  a  period  anterior  to  6  years 
before  the  commencement  of  the  action.  172  N.  Y,  1,  64  N.  E.  745, 
58  L.  R.  A.  500.  This  court  said,  per  Werner,  J. :  "We  think  the 
Kernochan  Case  has  no  application  to  a  case  like  the  one  at  bar,  and 
this  without  reference  to  the  fact  that  it  appears  affirmatively  that 
the  rental  paid  by  the  plaintiff  was  the  same  during  the  existence  of 
the  nuisance  as  it  was  before.  The  elevated  railroad  cases,  to  which 
class  the  Kernochan  Case  belongs,  are  sui  generis"  They  are  governed 
by  principles  which  apply  to  no  other  class  of  cases."  The  elaborate 
discussion  of  the  question  by  Judge  Werner  leaves  nothing  to  be  now 
added.  It  is  sufficient  to  say  that  that  case  expressly  held  that  a  ten- 
ant under  a  lease  made  during  the  existence  of  the  nuisance  was  en- 
titled to  recover  the  depreciation  of  the  value  of  the  occupation  of  the 
premises. 

It  is  said  to  be  the  settled  rule  of  law  "that  where  the  wrongful  act 
affects  different  interests  in  the  same  property,  the  owner  of  each 
interest  may  have  his  separate  action  against  the  wrongdoer.  Landlord 
and  tenant  have  separate  assets,  and  each,  if  injured  therein,  may 
have  redress,  the  one  for  the  injury  to  the  reversion,  the  other  for 
the  injury  inflicted  in  diminishing  his  enjoyment  "^of  the  premises." 
This  statement  is  doubtless  correct,  but  under  this  rule  "to  entitle  a 
reversioner  to  maintain  an  action,  the  injury  must  be  necessarily  of  a 
permanent  character,  and  that  a  presumed  intention  to  continue  the 
nuisance  is  not  sufficient,  even  where  there  is  evidence  that  the  prem- 
ises would  sell  for  less  if  the  nuisance  were  continued."  Mott  v.  Shool- 
bred,  opinion  of  Sir  George  Jessel,  M.  R.,  20  Eq.  Cases,  22.  See,  also, 
cases  cited  in  Judge  Werner's  opinioti.  Here  the  only  injury  found  by 
the  trial  court  is  to  the  enjoyment  and  occupation  of  the  premises. 
That  does  not  affect  the  reversioner.  Had  the  trial  court  found  that 
the  operation  of  defendant's  light  plant  cracked  the  walls  or  injured 
the  structure,  such  damage  would  be  of  a  permanent  character  and 
the  reversioner  entitled  to  recover.  In  the  present  case,  however,  not 
only  is  there  no  permanent  injury  to  the  plaintiffs'  buildings,  but  the 
defendant's  plant  did  not  constitute  the  nuisance,  but  its  operation,  and 
such  operation  was  not  necessarily  or  inherently  injurious  because 
the  trial  court  found  that  at  the  time  of  the  trial  its  operation  did  not 
damage  the  plaintiffs.  Judge  Andrews  said  in  the  Kernochan  Case: 
"We  should  be  very  reluctant  to  make  a  decision  which  would  expose 
the  defendants  to  a  double  action  in  cases  like  this,"  and  I  imagine 
that  the  reluctance  still  continues.  Nevertheless  if  the  judgment  be- 
fore us  is  affirmed  the  defendant  will  be  subjected  to  a  double  re- 
covery against  it,  for  under  the  Bly  Case  the  tenant  is  also  entitled  to 
recover,  if  in  fact  he  has  not  already  recovered,  the  diminution  in  the 


150  RIGHTS   INCIDENTAL  TO   POSSESSION  (Part   1 

rental  value  during  the  same  period  for  which  the  plaintiffs  are  award- 
ed damages  for  such  diminution.  It  is  not  a  case  like  that  suggested 
where  the  same  act  has  caused  injury  to  different  persons  and  each 
recovers  for  the  injury  to  himself;  but  here  two  parties  will  recover 
for  exactly  the  same  injury. 

I  may  suggest  this  further  distinction  between  the  elevated  railroad 
cases  and  that  of  a  casual  temporary  nuisance.  In  the  Kernochan  Case 
the  defendant  upon  satisfactorily  compensating  the  landlord  could 
continue  the  operation  of  its  road  despite  the  complaint  of  his  tenant. 
Here,  no  release  from,  or  settlement  with,  the  landlord  could  have 
prevented  the  tenant  from  restraining  the  operation  of  the  defendant's 
plant.  Moreover,  the  lease  by  the  plaintiffs  was  for  a  term  of  years. 
The  rights  of  the  tenant  and  landlord  then  became  fixed,  and  the  dam- 
age to  the  plaintiffs  accrued  at  once.  It  was  the  diminished  rent  during 
the  demised  term.  Had  the  defendant  ceased  the  operation  of  its 
plant  the  day  after  the  lease,  the  plaintiffs'  injury  would  have  been  as 
great  as  if  it  had  maintained  the  operation  during  the  whole  demised 
term.  Yet  I  apprehend  no  one  will  contend  that  the  defendant  would 
have  been  liable  for  the  whole  period.  But  if  we  should  assume  that 
such  a  contention  would  be  well  founded  the  result  would  be  that  the 
day  after  the  lease  the  operation  of  the  plant  might  be  stopped  at  the 
suit  of  the  tenant,  and  yet  the  defendant  remain  liable  to  the  landlord 
for  the  loss  of  rent  for  the  whole  term  of  the  lease.  In  other  words, 
the  defendant's  liability  would  depend  not  on  the  injury  done  by  its 
trespass  or  nuisance,  but  on  the  manner  in  which  the  owner  might  deal 
with  his  property.  The  decision  in  the  Bly  Case  did  not  pass  this  court 
without  discussion.  On  the  contrary,  there  was  a  vigorous  dissent 
by  Judge  Haight  (concurred  in  by  two  other  members  of  the  court), 
who  contended  that  the  loss  in  rental  value  went  to  the  landlord,  not 
to  the  tenant.  The  force  of  this  position  was  appreciated  by  the  ma- 
jority of  the  court  which,  when  it  decided  that  the  tenant  could  re- 
cover for  that  loss,  substantially  decided  that  the  landlord  could  not. 

I  think  the  judgment  should  be  reversed,  and  a  new  trial  granted, 
costs  to  abide  event. 

Gray,  J.  (dissenting),^  In  my  opinion,  the  right  of  the  plaintiffs 
to  bring  and  maintain  this  action  is  clear,  and  the  defendant's  appeal 
should  not  be  sustained.  The  plaintiffs  were  shown  to  have  been  in- 
jured by  the  defendant's  acts  in  the  depreciation  of  the  value  of  the 
property,  as  shown  by  the  diminished  amount  of  the  rent  for  the 
premises  reserved  by  the  lease  of  1895.  For  the  prior  term  of  five 
years  from  1890,  they  had  been  receiving  $15,000  a  year  as  rent; 
while,  for  the  succeeding  term  of  five  years  from  1895,  they  were  to 
receive  only  $12,000  a  year.  That  represented  a  total  loss  to  the  owner 
of  $15,000  for  the  new  term  and  furnished  a  basis  of  injury,  upon 
which  this  action  was  commenced  in  1898. 

8  Part  of  the  disseutiug  opinion  of  Gray,  J.,  is  omitted. 


Ch.  7)  RIGHTS   OF   REVERSIONERS  151 

I  consider  it  to  be  a  settled  rule  of  law  that,  where  the  wrongful  act 
affects  different  interests  in  the  same  property,  the  owner  of  each 
interest  may  have  his  separate  action  against  the  wrongdoer.  Lessor 
and  tenant  have  separate  estates  and  each,  if  injured  therein,  may  have 
redress;  the  one  for  the  injury  to  the  reversion,  the  other  for  the 
mjury  inflicted  in  diminishing  his  enjoyment  of  the  premises.  This 
rule  and  its  reason  have  been,  heretofore,  discussed  with  such  care, 
that  I  deem  it  necessary,  only,  to  refer  to  the  recent  cases  of  Kernochan 
V.  N.  Y.  Elevated  R.  R.  Co.,  128  N.  Y.  559,  29  N.  E.  65 ;  Hine  v. 
Same,  128  N.  Y.  571,  29  N.  E.  69;  Kernochan  v.  Manhattan  Ry.  Co., 
161  N.  Y.  345,  59  N.  E.  906;  and  Ely  v.  Edison  Electric  111.  Co.,  172 
N.  Y.  1,  64  N.  E.  745,  58  L.  R.  A.  500.  If  it  be  a  nuisance,  which  is 
the  subject  of  complaint  as  injuring  adjacent  property  interests,  the 
question  is,  when  the  owner  not  in  possession  sues,  whether  it  has  di- 
minished the  rental  value  of  his  property ;  the  difference  in  that  re- 
spect being  the  measure  of  his  right  to  damages.  When  the  tenant  sues, 
his  right  to  recover  rests  upon  the  ground  that  his  occupancy  is  dis- 
turbed and  the  full  enjoyment  of  his  possession  of  the  premises  is 
prevented  by  the  common  nuisance.  Francis  v.  Schoellkopf,  53  N.  Y. 
152;  Hine  v.  N.  Y.  Elev.  R.  R.  Co.,  supra;  Ely  v.  Edison  Electric 
111.  Co.,  supra.  In  the  Ely  Case  the  question  discussed  was  that  of  the 
tenant's  right  to  maintain  an  action  to  abate  a  nuisance  and  for  dam- 
ages, when  in  under  a  lease  made  during  the  existence  of  the  nuisance. 
It  was  held,  upon  a  careful  review  of  the  authorities,  in  effect  that  as 
there  was  no  justification  for  the  maintenance  of  that  which  was  a 
nuisance  and,  hence,  an  unreasonable  and  a  wrongful  use  by  the  de- 
fendant of  its  property,  the  tenant  of  the  property  injuriously  affected 
was  not  deprived  of  the  right  to  bring  an  action  by  reason  of  having 
acquired  the  lease  thereof,  during  the  existence  of  the  nuisance,  at  a 
diminished  rental.  The  right  to  have  compensation  for  injuries 
actually  sustained  and  to  have  the  nuisance  abated  could  not  thereby 
be  affected.  It  was  upon  that  proposition  that  the  judges  of  this 
court  divided  in  opinion.  As  to  the  right  of  the  owner  of  property, 
though  not  in  possession,  to  maintain  an  action  to  restrain  the  continu- 
ance of  a  nuisance,  w^hich  threatens  injury  to  his  reversionary  rights, 
and  to  recover  for  any  damage  which  he  may  be  able  to  show  that  he 
has  already  sustained  in  that  respect,  I  think  there  should  be  no  doubt. 

It  is  argued  that,  as  the  nuisance  arises  from  the  method  of  defend- 
ant's operation  of  the  power  house,  presumptively,  it  is  but  casual  and 
temporary.  That  is  to  say,  though  the  defendant's  building  and  me- 
chanical plant  were  permanent  structures,  the  operation  of  the  ma- 
chinery in  a  way  intolerable  and  injurious  to  others,  as  complained  of, 
would  not  be  presumed  to  continue.  Assuming  the  correctness  of  the 
proposition,  how  does  it  affect  the  principle  upon  which  the  legal  right 
of  the  plaintiffs  was  founded?  They,  certainly,  had  the  right  to  pro- 
tect their  reversionary  interest  against  injury.  A  casual,  or  temporary, 
trespass,  or  nuisance,  if  the  latter  is  of  a  casual  nature,  it  is  true,  usual- 


152  RIGHTS   INCIDENTAL   TO   POSSESSION  (Part    1 

ly  affects  the  possession  of  the  property,  and  therefore  gives  a  right 
of  action  to  the  lessee.  But  for  a  wrongful  act,  which  diminishes  the 
rental  value  of  the  property,  and  which,  from  the  circumstances,  may, 
fairly,  be  regarded  as  likely  to  continue,  whether  it  be  in  the  nature 
of  a  trespass,  or  of  a  nuisance,  an  action  will  lie  by  a  reversioner  to 
redress  the  wrong ;  although  the  lessee  may,  equally,  have  his  action  to 
redress  the  wrong  inflicted  upon  his  right  to  peaceable  and  com- 
fortable possession.  See  Kernochan  Case,  128  N.  Y.  559,  566,  29  N. 
E.  65,  and  the  English  cases  cited  in  the  opinion,  as  well  as  the  Bly 
Case,  supra. 

In  this  case  the  rental  value  of  the  plaintiffs'  property,  when  the 
second  lease  was  made  in  1895,  was  diminished  to  the  extent  of  $3,000 
a  year,  under  conditions  of  lease  similar  to  those  of  the  preceding,  and, 
according  to  the  findings  of  the  trial  court,  the  damage  to  the  plain- 
tiffs from  defendant's  operations,  only,  ceased  to  be  inflicted  in  1900. 
Thus,  the  defendant's  use  of  its  power  house,  in  a  way  injurious  to 
others,  had  continued  for  many  years  after  its  construction.  It  had 
so  seriously  affected  the  rental  value  of  the  plaintiff's  property  as  to 
compel  them  to  accept  a  reduced  rental  in  1895  for  a  further  term  and 
when  this  action  was  commenced,  in  1898,  the  threat  in  the  situation 
was  the  same.  However,  technically,  the  nuisance  may  be  termed  casu- 
al, as  caused  by  the  methods  of  the  defendant  in  operating  its  power 
house,  it  was  a  very  real  menace  to  the  plaintiffs'  interests  as  property 
owners.  The  case,  in  my  judgment,  came  within  the  established  rule 
which  allows  an  action  to  a  lessor,  whose  reversion  is  injuriously  af- 
fected, to  abate  the  nuisance,  by  restraining  its  continuance.  To  say 
that  the  nuisance  was  a  casual  or  a  temporary  one  is  an  answer  no  more 
satisfactory  than  it  is  complete,  legally,  to  the  statement  of  the  owners 
that  they  had  suffered  injury  in  the  past  by  its  maintenance  and  would 
suft'er  in  the  future  unless  it  was  restrained.     *     *     * 

For  these  reasons,  I  advise  the  affirmance  of  the  judgment. 

Judgment  reversed,  etc.* 

9  See,  in  addition  to  the  cases  cited  in  opinions,  Rust  v.  Victoria  Dock  Co., 
36  Ch.  D.  113  (1886) ;  Central  R.  Co.  v.  English,  73  Ga.  366  (1884) ;  Baker  v. 
Sanderson,  3  Pick.  (Mass.)  348  (1825) ;  Sumner  v.  Tiletson,  7  Pick.  (Mass.)  198 
(1828) ;  Eno  v.  Del  Vecchio,  13  N.  Y.  Super.  Ct.  17  (1856). 

The  city  of  New  York  in  1885  placed  a  pumping  station  on  land  owned 
by  it.  In  1898  the  plaintiff  took  a  lease  of  a  tract  of  land  near  by  for  a 
term  of  five  years.  He  now  sues  the  city  for  damages  to  his  land  caused  by 
the  action  of  the  pumps  in  drawing  water  from  the  surface  and  subsurface 
of  his  premises.  Held  he  has  no  cause  of  action.  Sposato  v.  City  of  New 
York,  75  App.  Div.  304,  78  N.  Y.  Supp.  168  (1902),  affirmed  178  N,  Y.  583, 
70  N.  E.  1109  (1904).  Compare  Halsey  v.  Lehigh  Val.  R.  Co.,  45  N,  J.  Law, 
26  (1883). 


PART  II 
RIGHTS  IN  THE  LAND  OF  ANOTHER 


CHAPTER  I 
•   PROFITS 


MOUNTJOY'S  CASE. 

(Common   Pleas,   15S3.     Co.   Lit.   164b.)  » 

The  Lord  Mountjoy,  seised  of  the  mannor  of  Canford  in  fee,  did  by 
deed  indented  and  inrolled  bargaine  and  sell  the  same  to  Browne  in 
fee,  in  which  indenture  this  clause  was  contained.  Provided  alwayes, 
and  the  said  Browne  did  covenant  and  grant  to  and  with  the  said  Lord 
Mountjoy,  his  heires  and  assignes,  that  the  Lord  Mountjoy,  his  heires 
and  assignes,  iBisl}t_4iS^9?'_9ISLini  the  lands  (which  were  greate  wasts) 
parcell  of  the  said  mannor,  and  to  dig  turfe  also  for  the  making  of 
allome.  And  in  this  case  tliree  poynts  were  resolved  by  all  the  judges. 
First  that  this  did  amount  to  a  grant  of  an  interest  and  inheritance  to 
the  Lord  Mountjoy,  to  digge,  &c.  Secondly,  that  notwithstanding  this 
grant,  Browne  his  heires  and  assignes  might  dig  also,  and  like  to  the 
case  of  common  sauns  nomber.^  Thirdly,  that  tlie  Lord  Mountjoy 
might  assigne  his  whole  interest  to  one,  two,  or  more;  but  then,  if 
there  be  two  or  more,  they  could  make  no  division  of  it,  but  work  to- 
gether with  one  stock;  neither  could  the  Lord  Mountjoy,  &c.  assigne 
his  interest  in  any  part  of  the  wast  to  one  or  more,  for  that  might 
worke  a  prejudice  and  a  surcharge  to  the  tenant  of  the  land;  and 
therefore  if  such  an  incertaine  inheritance  descendeth  to  two  copar- 
ceners, it  cannot  be  divided  betweene  them.^ 

]  S.  c.  1  And.  307 ;  Godbolt,  17. 

2 Ace:     Chatham  v.  Williaiiison,  4  East,  469  (1S04). 
3 Ace:     Leyman  v.  Abeel,  16  Johns.  (N.  Y.)  30  (1819). 

a53) 


154  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

DOWGLASS  V.  KENDAL. 

(Court   of    King's    Bench,    1609.     Cro.    Jac.    256.) 

Trespass,  for  taking  and"  carrying  away  thirty  loads  of  thorns  of  the 
plaintiff's,  by  him  cut  down,  and  lying  upon  his  land  at  Chipping- 
warden,  in  a  place  called  the  Common  Waste. 

The  defendant  justifies,  because  the  place  where,  &c.  is  an  acre,  and 
that  he  is  seised  in  fee  of  a  messuage  and  three  acres  of  land  in  Chip- 
pingwarden  aforesaid;  and  that  he  and  all  whose  estate  it  was,  &c. 
have  used  from  time  to  time  to  cut  down  and  takes  omnes  spinas  cres- 
centes  upon  the  said  place,  to  expend  in  the  said  house,  or  about  the 
said  lands,  as  pertaining  to  the  said  house  and  lands;  and  so  justi- 
fies, &c. 

The  plaintiff  shews,  that  Sir  Richard  Saltington  was  seised  in  fee  of 
the  manor  of  Chippingwarden,  whereof  the  place  where,  &c.  is  parcel, 
and  granted  license  to  him  to  take  the  thorns ;  whereupon  he  cut  them 
down,  and  the  defendant  afterwards  took  them. 

Upon  this  plea  it  was  demurred ;  and,  after  argument  at  the  Bar, 
adjudged  for  the  defendant:  for,  as  this  case  is,  the  lord  may  not  cut 
down  any  thorns,  nor  license  any  other  to  cut  them  down ;  for  the  de- 
fendant prescribeth  to  have  all  the  thorns  growing  upon  that  place,  and 
this  prescription  excludes  the  lord  to  take  any  thorns  there :  but  if 
he  had  claimed  common  of  estovers  only,  then  if  the  lord  has  first  cut 
down  the  thorns,  the  commoner  might  not  take  them ;  and  if  he  had 
cut  down  all  the  thorns,  the  commoner  might  have  had  an  assise ;  but 
here  he  prescribes  to  have  all,  which  is  admitted  by  the  replication,  and 
is  well  enough ;  and  so  hath  been  resolved  in  one  Kentick's  Case,  Cro. 
Jac.  208;  that  one  may  prescribe  to  have  the  sole  pasturage  in  such  a 
place,  from  such  a  time  to  such  a  time,  against  th€  owner  of  the  soil, 
who  shall  not  meddle  therewith  during  that  time.  It  was  also  held,  al- 
though he  doth  not  prescribe  that  it  was  an  ancient  house  to  which,  &c. 
yet  it  is  good  enough;  and  so  is  the  usual  prescription  for  common, 
and  shall  be  so  intended. 

Wherefore  it  was  adjudged  for  the  defendant.* 

4  "It  has  been  long  since  settled,  that  a  man  may  prescribe  to  have  the 
sole  and  several  pasture,  vesture,  or  herbage  for  a  limited  time  in  every 
year,  in  exclusion  of  the  owner  of  the  soil.  Fitz.  Prescription,  51  Co.  Litt. 
122.  a.  2  Roll.  Abr.  267  (L),  pi.  6.  Winch's  Rep.  6.  Sir  George  Spanke's 
case.  S.  C.  Hutt.  45.  Pitt  v.  Chick.  But  it  was  for  some  time  a  question 
whether  a  prescription  for  a  sole  and  several  pasture,  &c.  in  exclusion  of  the 
owner  of  the  soil  for  the  whole  year  was  good.  In  Vaugh.  251.  North  v. 
Coe.  S.  C.  1  Lev.  253.  the  court  of  Common  Pleas  was  equally  divided  upon 
it;  but  in  the  principal  case,  the  court  of  K.  B.  inclined  to  think  the  pre- 
scription might  be  supported;  and  in  Hopkins  v.  Robins,  2  Saund.  324.  S.  C. 
2  Lev.  2.  Pollexf.  13.  1  Mod.  74.  it  was  adjudged  that  the  prescription  wns 
good ;  fo^r  it  does  not  exclude  the  lord  from  all  the  profits  of  the  land^  as  he 
is  entitled  to  the  mines,  trees,  and  tjuarries:  and  tlie  law  has  been  so  con- 
sidered ever  since."     Potter  v.  North,  1  Wm.  Sauiid.  353,  note  2  (1669). 

The  latter  part  of  the  note  by  Serjeant  Williams  contains  a  discussion  of 
the  right  of  self-redress  by  the  commoner.  See,  also,  Hope  v.  Osborn,  L1913J 
2  Ch.  349. 


Ch.  1)  PROFITS  155 

TOTTEL  V.  HOWELIv. 

(Court  of  Common  Pleas,  1595.     Noy,  54.) 

It  was  held  by  the  Court,  that  herbagium  for  years,  cannot  be  grant- 
ed without  deed.    Note  17  K.  4,  6.^ 


GRUBB  V.  BAYARD. 

(Circuit  Court  of  the  United  States.  E.  D.  Pennsylvania,  1851.     2  Wall.  Jr. 
81,  Fed.  Cas.  No.  5849.) 

David  Foree,  by  deed  of  indenture  made  in  1769,  reciting  his  title 
to  302  acres  of  land,  grants,  bargains  and  sells  20  acres  of  it  which  are 
described,  to  William  Bennet ;  leaving  282  acres  still  his  own  proper- 
ty, in  regard  to  which  the  indenture  contained  the  the  following  cove- 
nant: "And  the  aforesaid  David,  for  himself,  his  heirs,  executors  and 
administrators,  doth  covenant,  promise,  grant  and  agree  to  and  with 
the  aforesaid  William,  his  heirs  and  assigns,  that  he,  the  said  William, 
his  heirs  and  assigns,  shall  and  may,  from  time  to  time,  and  all  time 
hereafter,  dig,  take  and  carry  away  all  iron  ore  to  be  found  within  the 
bounds  of  the  said  David's  tract  of  land  containing  282  acres,  provided 
he,  the  said  William,  his  heirs  and  assigns,  pay  unto  the  said  David, 
his  heirs  or  assigns,  the  sum  of  six  pence,  Pennsylvania  currency,  per 
ton,  for  every  ton  taken  from  the  premises  of  282  acres  aforesaid." 
The  deed  was  a  technically  and  well  drawn  instrument  containing  all 
the  formal  or  orderly  parts  of  a  deed  enumerated  by  Lord  Coke  (Co. 
Litt.  6a)  ;  and  the  covenant  above  quoted  followed  after  the  habendum 
and  tenendum.  Berinet  being  dead,  the  plaintiff  purchased  the  inter- 
ests of  ninety-four  of  ninety-nine  of  his  representatives,  and  the  de- 
fendant having  become  owner  of  the  282  acres  reserved,  and  having 
taken  away  many  thousand  tons  of  iron  ore,  this  action  on  the  case 
was  brought  by  the  plaintiff  against  him. 

It  was  admitted  that  the  ore  taken  by  the  defendant  was  found,  min- 
ed and  dug  by  himself  or  his  servants :  and  it  appeared  that  neither 
Bennet  nor  his  heirs,  nor  the  plaintiff  had  ever  had  actual  possession, 
use,  occupation  or  enjoyment  of  the  right  granted  by  the  deed  of  1769, 
nor  been  in  any  way  hindered  in  the  enjoyment  of  it  otherwise  than 
by  the  defendant's  tal<ing  ore  in  the  manner  just  stated.  The  declara- 
tion which  contained  numerous  counts,  founded  the  plaintiff's  right  to 
recover  on  his  being  "lawfully  possessed  of  a  certain  right  and  privi- 
lege to  dig,  take,  and  carry  away^fron  ore  to  be  found  within  the  bounds 
of  a  certain  tract  of  land  to  the  exclusion  of  the  defendant,"  or  as  be- 
ing "lawfully  possessed  of  a  certain  exclusive  right  or  several  privi- 

5Acc.:     Gardner  v.  Williamson,  2  B.  &  Ad.  33G  (1831). 

See  Hoskins  v.  Robins,  2  Saund.  324  (1671) ;  Somerset  v.  Fogwell,  5  B.  & 
C.  875  (1826). 


156     .  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

iegQ  to  dig,  take  and  carry  away  iron  ore  to  be  found  within  the  bounds 
of  a  certain  tract  of  land;"  and  charged  the  defendant  with  unjustly 
hindering  and  preventing  the  plaintiff  from  digging,  taking  away  the 
iron  ore  to  be  found  within  the  bounds  of  the  tract,  and  also  wrongfully 
taking  large  quantities  of  ore  from  said  tract,  &c.  All  the  counts  as- 
serted in  some  form  a  right  which  was  several  or  exclusive  in  the  plain- 
tiff:  none  of  them  representing  him  as  a  tenant  in  common  with  oth- 
ers:   and  none  of  them  alleging  a  "surcharge"  by  defendant. 

The  plea  was  "Not  guilty" :  there  being  no  plea  of  any  sort  in  abate- 
ment for  the  nonjoinder  of  the  remaining  representatives  of  Bennet, 
whose  rights  the  plaintiff  had  not  acquired.  Upon  these  facts,  a, ver- 
dict having  been  given  for  the  defendant,  the  following  questions  came 
before  the  court  on  a  motion  for  a  new  trial : 

1.  What  was  the  nature  of  the  right  granted  by  Force  to  Bennet? 

II.  Was  this  right — whatever  it  was — exclusive?  so  making  it  un- 
lawful for  the  owner  of  the  land  to  dig  in  it  for  ore,  as  well  as  the  as- 
signee of  Bennet. 

III.  Was  this  right  divisible  or  susceptible  of  apportionment;  so 
that  the  plaintiff  having  but  94-99ths  of  it  could  maintain  this  action  ? 

GriER,  Circuit  Justice.  Assuming,  for  the  argument,  the  plaintiff 
to  be  the  assignee  of  the  whole  right  which  was  vested  in  Bennet,  and 
that  it  is  a  grant  upon  sufficient  consideration,  let  us  inquire,  what  is 
granted?  Not  the  iron  ore.  This  the  plaintiff  properly  admits  in  his 
declaration,  where  he  defines  his  interest  under  the  deed,  as  a  "right  and 
privilege  to  dig,  take,  and  carry  away  iron  ore  to  be  found"  in  the  land 
of  defendant.  If  it  had  been  a  grant  of  an  absolute  property  in  all  the 
iron  ore  in  the  tract,  the  deed  would  have  been  insufficient  to  confer  ti- 
tle without  livery  of  seisin,  and  the  statute  of  limitations  a  bar  to  the 
claim.  A  right  or  privilege  to  dig  and  carry  ore  from  the  land  of  an- 
other, is  an  incorporeal  hereditament,— aj"ight  to  be  exercised  on  the 
land  of  another.  It  is  a  license  irrevocable,  when  granted  on  sufficient 
consideration.  It  may  be  demised  for  years  or  granted  in  fee :  it  is 
assignable.  The  grantee  or  assignee  of  such  a  license,  right  or  privi- 
lege to  be  exercised  in  the  land  of  another,  has  no  such  title  to  the  ore 
that  he  can  support  trover  against  the  owner  of  the  land  for  ore  or  coal 
raised  by  him.    Chetham  v.  Williamson,  4  East,  469.     *    *    * 

2.  Is  the  right  granted,  one  that  is  exclusive  of  the  owner  of  the  soil  ? 
Much  stress  has  been  laid  upon  the  word  "all"  in  this  grant,  as  having 
the  effect  of  making  it  exclusive.  But  so  important  a  restriction  cannot 
be  deduced  from  so  equivocal  an  expression.  The  deed  has  been  drawn 
by  a  very  able  conveyancer.  He  seems  to  have  had  Lord  Mount  joy's 
Case  in  his  mind  at  the  time.  He  employs  none  of  the  apt  and  well 
known  terms  or  phraseology  to  indicate  an  intention  of  giving  an  ex- 
clusive right  as  against  the  grantor  himself.  The  grant  of  a  right  to  dig, 
take  and  carry  away  "all"  iron  ore  to  be  found  within  the  bounds,  &c. 
shows_the_extent  of  the  license,  but  not  its  exclusiveness.  The  grantee 
may  dig,  take,  &c.  of  any  or  all  the  ore  he  can  find  on  the  land,  but  he 


Ch.  1)  PROFITS  157 

has  no  exclusive  right  in  any  of  it  till  he  finds  it  and,iiigs  it.  It  is  a 
right\vithout  stint  as  to  quantity,  and  Lord  Mount  joy's  Case  likens 
it  to  the  grant  of  a  right  of  common  sans  noiribre  w*hich  does  not  ex- 
cjude  the  owner.  This  is  a  point  decided  in  Lord  Mountjoy's  Case  as 
reported  by  Coke,  Leonard  and  Godbolt. 

3.  Did  the  evidences  given  by  the  plaintifif  support  the  allegation  that 
he  was  possessed  of  the  exclusive  right  to  dig,  &c  ,  assuming  that  the 
deed  in  question  conferred  an  exclusive  right  on  Bennet  to  dig,  take, 
and  carry  away  the  iron  ore  on  this  tract  of  land?  The  right,  license  or 
liberty  granted  to  Bennet  is  in  its  nature  one  and  indivisible.  Unless 
the  plaintiff  is  clothed  with  the  whole  he  Has  nothing.  As  for  other 
things  indivisible,  it  may  be  held  by  one  or  more  as  joint  tenants.  But 
they  hold  per  my  et  per  tout,  (not  as  Blackstone  has  erroneously  ihter- 
preted  it,  "by  the  half  or  moiety  and  by  all,")  but  "by  nothing  and  TDy 
all"  (7  Man.  &  S.  452,  in  note),  or,  in  the  language  of  Bracton,  "Quilibit 
totum  habet  et  nihil  habet,  scilicet  totum  in  communi  et  nihil  separatim 
per  se."  As  a  right  to  be  exercised  in  the  land  of  another  it  is  an  in- 
divisible unit.  Whether  the  plaintiff  has  l-99th  or  94-99ths  makes  no 
difference.  If  hejias  not  the  whole  he  has  nothing.  It  is  a  question  of 
title  and  not  of  pleading.  !  ''■>■' 

The  Case  of  Lord  Mountjoy  is  conclusive  on  this  point  also. 

New  trial  refused.'' 

6  Kane,  District  Judge,  delivered  a  concurring  opinion.  Part  of  tlie  opin- 
ion of  May  13,  1S51,  and  all  of  the  opinion  of  September  8,  1851,  of  Grier, 
Circuit  Justice,  are  omitted. 

A.  grants  to  B.  "'his  partners,  fellow  adventurers,  executors,  administrators, 
and  assigns,  free  liberty,  license,  power,  and  authority  to  dig,  work,  mine,  and 
search  for  .tin,  tin  ore,  etc.,  and  all  other  metals  and  minerals  whatsoever 
throughout  all  that  part  of  the  land  of  the  said  A.  commonly  called  Crinnis, 
*  *  *  and  the  tin,  tin  ore,  etc.,  and  other  metals  and  minerals  there  found 
to  raise  and  bring  to  grass.  *  *  *  And  dispose  of  to  their  own  use  at 
their  pleasure.  *  *  *  ipo  have,  hold,  use,  exercise,  and  enjoy  the  said  sev- 
eral liberties,  licenses,  etc.,  for  the  term  of  twenty-one  years."  B.  covenanted 
to  pay  one-eighth  share  of  all  ore  to  A.  and  effectually  to  work  the  premises. 
Subsequently,  within  21  years,  C,  under  license  from  A.,  opened  mines  on 
other  parts  of  the  specified  land,  but  not  interfering  with  the  mines  opened 
by  B.  Held,  B.  cannot  maintain  ejectment  against  C.  Doe  v.  Wood,  2  B. 
&  Aid.  724  (1819).  Ace:  Harlow  v.  Lake  Superior  Iron  Co.,  36  Mich.  1U5 
(1877). 


158  RIGHTS  IN  THE  LAND   OF   ANOTHER  (Part  2 

CALDWELL  v.  FULTON. 
(Supreme  Court  of  Peunsylvania,  1S58.     31  Pa.  475,  72  Am.  Dec.  760.) 

This  was  an  action  of  trespass,  for  taking  coals  from  the  land  of 
the  plaintiff.  He  claimed  the  locus  in  quo,  by  devise  from  his  father, 
James  Caldwell.  The  defendants  justified  under  George  Greer,  to 
whom  James  Caldwell  made  a  deed,  in  his  lifetime,  for  the  coals.taken, 
and  as  the  judgment  to  be  entered  in  this  case  must  depend  on  the  con- 
struction of  that  deed,  it  is  important  to  obtain,  at  the  threshold,  a  clear 
and  comprehensive  view  of  its  terms. 

The  deed  was  dated  on  the  27th  May,  1831 ;  acknowledges  a  con- 
sideration of  one  thousand  eight  hundred  dollars,  is  to  George  Greer, 
his  heirs  and  assigns,  for  all  the  therein  "described  property,  situate  on 
the  east  side  of  the  Youghiogheny  river,"  and  then  describes  by  metes 
and  bounds,  two  parcels  of  land,  one  of  which  contains  six  acres  and 
forty-seven  perches,  the  other  ten  acres  and  fifty  perches.  The  grant 
of  coal  then  follows,  in  these  terms :  "Also,  the  full  right,  titje,^  and 
privilege  of  digging  and  taking  away  stone  coal,  to^any  extenj  the  said 
George  Greer  may  think  proper  to  do,  or  cause  to  be  done,  under  any 
of  the  land  now  owned  and  occupied  by  the  said  James  Caldwell ;  pro- 
vided, nevertheless,  the  entrance  thereto,  and  the  discharge  therefrom, 
be  on  the  foregoing  described  premises."  In  the  habendum  the  property 
conveyed  is  called  two  lots  or  parcels  of  land,  and  the  "aforesaid  right 
to  the  stone  coal,"  and  is  so  designated  again  in  the  covenant  of  war- 
ranty.    Such  was  the  original  grant. 

On  the  23d  March,  1842,  Greer  and  wife  conveyed  an  undivided  half 
of  the  premises  to  Butler  Case,  and  the  other  half  to  John  B.  McCune. 
January  20th,  1844,  Butler  Case  conveyed  to  William  McCune.     De- 
cember 5th,  1844.  John  B.  McCune  conveyed  his  moiety  to  Thompson 
Bell.     By  deeds,  bearing  date  the  7th  June  and  the  30th  August,  1848, 
Bell  and  William  McCune  made  partition  between  themselves  of  the 
sixteen  acres,  according  to  agreed  lines,  and  of  the  coal 'lying  back  of 
said  lots,  under  the  Caldwell  farm,  in  a  manner  corresponding  with  the 
partition  of  the  lots. 
M-*^^'---       In  August,  1852,  William  McCune  leased  to  Fulton  and  the  other 
/T       defendants  his  several  part,  both  of  the  lots  and  the  coal ;    and  it  was 
the  entry  upon  the  coal,   under  this  lease,   for  which  the  suit  was 
i«<  brought.     It  does  not  appear,  from  the  record,  whether  any  opening 

had  been  made  into  the  coal,  on  the  part  of  the  premises  set  off  to 
McCune,  but  it  is  stated  that  the  opening  on  Bell's  portion  of  the  ten 
acre  piece  has  not  been  worked  since  Fulton  commenced  working  the 
coal  on  McCune's  part.''     *     *     * 

Strong,  J.  [after  stating  the  substance  of  the  deed].  The  consid- 
eration mentioned  is  single  for  the  entire  subject  conveyed  by  the  deed. 

7  This  statement  of  fact  is  taken  from  the  first  opinion  of  tlie  court  in 
this  case  by  Woodward,  J.     Part  of  the  opinion  of  Strong,  J.,  is  omitted. 


'7fu 


Ch.  1)  PROFITS  159 

It  is  to  be  observed  in  the  description  of  the  thing  granted,  that. there 
are  no  limits  fixed  upon  the  extent  to  which  coal  might  be  taken  from 
the  land  then  owned  and  occupied  by  the  grantor.  The  grantee's  right 
was  coextensive  with  his  will ;  not  necessarily  to  be  exercised  by  him- 
self, but  one  which  might  be  enjoyed  by  others  whom  he  should  au- 
thorize. No  form  of  words  other  than  those  employed  could  have 
given  him  larger  dominion. 

Coal  and  minerals  in  place  are  land.  It  is  no  longer  to  be  doubted 
that  they  are  subject  to  conveyance  as  such.  Nothing  is  more  common 
in  Pennsylvania  than  that  the  surface  right  should  be  in  one  man,  and 
the  mineral  right  in  another.  It  is  not  denied,  in  such  a  case,  that  both 
are  landowners,  both  holders  of  a  corporeal  hereditament.     *     *     * 

If  then  the  ownership  of  the  coal  or  other  minerals  in  a  tract  of  land 
may  be  vested  in  one  person,  while  the  right  to  the  surface  belongs  to 
another,  the  next  inquiry  is,  by  what  words  it  may  be  granted.  There 
are  two  modes  in  which  the  subject-matter  of  a  deed  may  be  describ- 
ed, both  equally  potential.  The  one  is  by  a  description  of  the  thing 
itself,  as  of  land  by  metes  and  bounds,  or  by  a  known  name,  and  the 
other  is  by  a  designation  of  its  usufruct,  or  of  the  dominion  over  it. 
Thus  a  grant  of  the  rents,  issues,  and  profits  of  a  tract  of  land  is  uni- 
formly held  to  be  a  grant  of  the  land  itself.  Co.  Litt.  4  b.  Judgments 
abound  to  this  eftect  in  regard  to  devises,  and  though  in  wills  and  deeds 
the  rules  of  construction  difier  relative  to  words  limiting  the  estate 
granted,  yet  they  are  the  same  of  words  describing  the  subject-matter 
of  the  grant.  There  are  also  cases  of  the  same  character  to  be  found 
in  regard  to  deeds.  Thus  it  has  been  held  that  by  the  grant  of  a  boilery 
of  salt  the  land  passes,  for  that  is  the  whole  profit,  Co.  Litt.  4  b.;  or 
a  mine  of  lead,  Id.  6  a.  So  by  the  grant  of  all  growing  trees,  Cro. 
Eliz.  522.  See,  also,  Clap  v.  Draper,  4  Mass.  266 ;  Fish  v.  Sawyer,  1 1 
Conn.  545.  Thej-eason  is  that  the  grant  of  a  thing  can  be  no  more 
than  the  grant  of  the  full  and  unlimited  use  of  it.  So  too  the  general 
power  of  disposal  without  liability  to  account  is  equivalent  to  owner- 
ship itself,  it  being  the  highest  attribute  of  ownership,  and  a  gift  of 
the  one  necessarily  carries  with  it  the  other.  This  is  the  doctrine  of 
Morris  v.  Phaler,  1  Watts,  389. 

Applying  these  principles  to  the  case  in  hand,  why  was  not  the  deed 
of  Caldwell  to  Greer  a  conveyance  of  the  coal  in  the  land  owned  and 
occupied  by  the  grantor  ?  Because,  says  the  plaintiff  in  error,  it  is  not 
a  grant  of  the  thing  itself,  but  of  a  right  to  take  it,  and  until  it  is  seized 
or  taken  the  property  in  the  thing  remains  in  the  grantor.  But  if  the 
conveyance  of  the  whole  use  of  a  thing,  and  of  the  absolute  dominion 
over  it,  is  a  grant  of  the  thing  itself,  only  differing  in  the  mode  of  de- 
scribing the  subject,  it  is  not  easy  to  see  what  more  Caldwell  could  have 
sold  than  he  did.  If  in  another  form  of  words  he  had  described  the 
coal  as  the  subject  of  the  grant,  Greer  would  have  possessed  no  greater 
beneficial  rights  than  we.re  given  to  him  by  the  form  adopted.  The 
ownership  of  the  coal  in  the  ground  is  but  a  "full  right,  title,  and  priv- 


160  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

ilege",to  dig  and  carry  it  away,  nothing  more,  nothing  less.  The  words 
employed  in  the  deed  express  absolute  dominion,  and  complete  enjoy- 
ment. These  constitute  property,  and  all  that  is  understood  in  pro- 
prietorship. 

Again,  says  the  plaintiff  in  error,  this  is  but  a  grant  of  a  right  to  take 
and  carry  away  part  of  the  profits,  and  that  while  a  grant  of  a  right 
to  take  all  the  rents,  issues,  and  profits  of  a  tract  of  land  is  equivalent 
to  a  conveyance  of  the  land  itself,  because  it  embraces  their  whole 
usufruct,  a  grant  of  a  right  to  take  part,  such  as  "iron  ore,  coals,"  or 
"minerals,"  is  not.  It  is  said  that  in  such  a  case  the  grantee  can  only 
take  in  common  with  the  grantor. 

The  argument  is  based  upon  a  misconception.  The  subject  alleged 
to  have  been  granted  here  is  not  the  tract  of  land,  but  the  coal  in  it, 
which,  as  we  have,  seen,  is  capable  of  a  separate  conveyance,  and  which 
may  be  vested  in  one  person,  while  the  ownership  of  the  tract  of  land, 
as  such,  may  be  another's.  The  alleged  subject  of  the  grant  then  be- 
ing the  coal  in  the  land,  the  substratum,  the  argument  is  inapplicable. 
The  whole  usufruct  of  that,  as  well  as  the  entire  dominion  over  it,  was 
granted.  The  deed  is  not  a  conveyance  of  part  of  the  usufruct,  nor 
of  the  usufruct  of  part  of  the  coal,  but  of  the  entire  enjoyment.  As 
already  said,  there  was  no  limit  to  the  grantee's  right  but  his  own  will. 
He  could  take  out  coal  to  any  extent.  He  could  cause  it  to  be  taken 
out  to  any  extent,  and  at  all  times  under  any  of  the  land.  He  was  ac- 
countable to  no  one.  His  entrance  to  it  and  his  exit  from  it  were  in- 
deed required  to  be  on  his  own  land ;  but  the  right  to  take  the  coal 
itself  was  absolutely  unlimited.  It  would  seem,  therefore,  that,  accord- 
ing to  well-established  rules  of  construction,  the  deed  of  Caldwell  to 
Greer  was  a  conveyance  of  the  coal  itself,  and  not  of  a  mere  easement, 
or  incorporeal  hereditament. 

It  is  contended,  however,  that  such  a  construction  is  in  conflict  with 
the  authorities,  and  we  are  referred  to  Lord  Mount  joy's  case  as  the 
leading  and  principal  one.     *     *     * 

Unlike  the  case  we  have  under  consideration,-  it  was  not  a  grant  of 
unlimited  dominion  over  the  ores  and  turf.  It  was  not  a  grant  of  a 
right  to  dig,  take,  and  carry  away  without  stint,  but  only  sufficient  for 
a  single  specified  purpose,  viz. :  the  manufacture  of  alum  and  copperas. 
It  was  very  aptly  likened  to  a  grant  of  common  sans  nombre,  but  was 
not  an  exclusive  right.  Surely  there  is  very  little  resemblance  between 
that  case  and  the  present.  It  is  not  at  all  in  conflict  with  the  constru(>^ 
tion  we  place  upon  Caldwell's  deed  to  Greer.     *     *     * 

We  are  next  referred  to  Doe  v.  Wood,  2  Barn.  &  Aid.  719,  where 
the  grant  was  called  a  license,  and  where  the  privilege  was  to  dig,  work, 
mine,  and  search  for  tin,  &c.,  and  dispose  of  what  might  be  found  dur- 
ing a  term  of  twenty-one  years.  The  court  held  it  to  be  a  license  on 
the  ground,  among  others,  that  it  was  a  right  to  dig,  search  for,  &c., 
"the  minerals  that  should  within  that  term  there  be  found,"  and  not  a 
grant  of  the  entire  subject.    The  indenture  also  contained  covenants  of 


Ch.  1)  PROFITS  161 

the  grantee  to  render  a  share  of  the  ore  he  might  find,  and  to  allow 
the  grantor  himself  to  drive  adits.  The  case  is  no  authority  in  support 
of  the  argument  of  the  plaintiff  in  error. 

The  only  other  case  to  which  we  are  referred  is  Grubb  v.  Bayard, 
2  Wallace,  Jr.  81,  Fed.  Cas.  No.  5,849.  There  the  grant  was  to  dig, 
take,  and  carry  away  all  iron  ore  to  be  found  within  the  bounds  of  a 
tract  of  land  of  the  grantor,  provided  the  grantee  should  pay  unto  the 
grantor,  his  heirs  and  assigns,  the  sum  of  sixpence  for  every  ton  taken 
from  the  premises.  This  was  held  to  be  an  incorpgr_eal  hereditament. 
It  will  be  observed,  that  there  was  no  present  consideration  passed,  nor 
was  there  a  covenant  of  the  grantee  to  search  for  or  take  any  ore.  He 
might  never  have  taken  any.  In  that  event,  if  the  deed  had  been  held 
a  conveyance  of  the  iron  ore,  there  would  have  been  a  sale  without  j._ 
consideration.  Nor  was  it  a  grant  of  the  whole,  but,  said  Mr.  Justice 
Grier,  of  the  iron  ore  that  should  be  found  within  the  term,  and  on 
that  account  was  but  a  license.  He  also  remarked  that  "if  it  had  been 
a  grant  of  an  absolute  property  in  all  the  iron  ore  in  the  tract,  the  deed 
would  have  been  insufficient  to  convey  title  without  livery  of  seisin."  , 
This  observation  goes  beyond  the  English  cases,  and  is  not  necessary 
to  the  judgment  rendered.  In  Grubb  v.  Bayard,  Judge  Kane  delivered 
a  concurring  opinion.  In  it,  he  refers  to  the  absence  of  a  covenant  by 
the  grantee  to  work  the  mines,  and  thus  ma"ke  the  rent  reserved  of 
value,  as  a  circumstance  of  much  importance  in  determining  the  inten- 
tions of  the  parties.  That  it  is  so,  is  obvious,  for  without  it  the  con- 
tract might  have  proved  entirely  fruitless  to  the  vendor,  while  in  the 
present  case,  Caldwell  has  received  all  that  he  ever  can  receive.  The' 
right,  whatever  it  is,  is  one  for  which  all  the  consideration  has  been 
paid. 

These  are  all  the  cases  adduced  to  sustain  the  doctrine  that  a  con- 
veyance of  a  right  to  dig,  take,  and  carry  away  the  coal  or  minerals  in 
a  tract  of  land,  though  the  grant  be  unlimited  in  quantity,  time,  or  pur- 
pose for  which  the  minerals  may  be  taken,  conveys  no  interest  in  the 
coal  or  minerals  until  they  are  taken,  passes  only  an  incorporeal  here- 
ditament. None  of  them  were  decided  upon  the  ground  of  any  suppos- 
ed distinction  between  a  right  to  take  all  the  coal  and  carry  it  away,  and 
a  right  to  the  coal  itself.  They  are  all  cases  in  which  there  was  no 
unrestricted  power  of  taking  and  disposition  conferred  upon  the  gran- 
tee. The  coal  or  minerals  was  to  be  taken  either  for  a  limited  purpose, 
or  in  restricted  quantities,  and  generally  was  not  to  be  paid  for  until 
taken.  And  in.  most  of  them  it  is  easy  to  see  that  the  supposed  neces- 
sity of  livery  of  seisin,  in  order  to  pass  a  corporeal  interest  in  land,  Avas 
a  controlling  consideration  in  the  rninds  of  the  judges.  Even  in  Grubb 
V.  Bayard,  it  seems  not  to  have  been  without  influence.  The  impossi- 
bility of  making  livery  is,  however,  in  Pennsylvania,  no  reason  for  re- 
fusing to  give  a  construction  to  a  deed  accordant  with  the  intention 
of  the  parties.  When  the  intent  is  to  give  the  entire  usufruct  and  pow- 
BiG. Rights — 11 


1G2  RIGHTS   IN  THE   LAND   OB^   ANOTHER  (Part  2 

er  of  disposal,  the  legal  title  must  be  held  to  pass.  Even  in  England, 
livery  of  seisin  is  no  longer  indispensable  to  the  grant  of  a  corporeal 
hereditament.  Unopened  mines  may  be  conveyed,  and  the  grantee 
takes  more  than  a  right  issuing  out  of  land,  or  exercisable  therein.  He 
takes  the  mines  themselves.  In  ^toughton  v.  Leigh,  4  Taunt.  402,  a 
widovi^  was  held  entitled  to  dower  of  mines,  not  only  in  lands  in  which 
her  husband  had  been  seised  in  his  Hfetime  and  during  coverture,  but 
also  in  those  which  were  in  the  lands  of  other  persons,  the  minerals  or 
substratum  of  which  had  been  conveyed  to  him.  It  was  also  ruled, 
that  in  assigning  her  dower,  the  sheriff  should  set  off  to  her  not  one- 
third  of  the  profits,  but  one-third  of  the  mines  themselves,  and  that  tlie 
partition  might  be  made  either  by  metes  and  bounds,  or  by  directing 
separate  alternate  periods  of  enjoyment.     *     *     * 

Thus,  after  a  careful  review  of  the  question,  we  are  constrained  to 
hold  that,  by  the  deed  from  Caldwell  to  Greer,  the  title  to  the  coal  m 
the  lands  then  owned  and  occupied  by  the  grantor  was  convej^^  and^ 
not  a  mere  license,  or  incorporeal  right.  Such  was  the  opinion  of  this 
court  in  1855,  when  the  same  deed  was  here  for  construction,  and'  the 
very  able  argument  of  the  counsel  for  the  plaintiff'  in  error,  has  failed 
to  convince  us  that  the  court  was  then  mistaken.     *     *     * 

The  judgment  is  affirmed.* 

8A.,  in  consideration  of  $2,000  executed  a  deed  to  one  Moses  by  which  he 
granted,  sold,  and  conveyed  unto  the  said  Moses,  "his  heirs,  executors  and  as- 
signs, the  right  and  privilege  of  entering,  by  himself  and  his  agents,  in  and 
upon  all  or  any  part  of  the  said  tract  of  land,  for  the  purpose  of  searching 
for  minerals  'and  fossil  substances  and  conducting  mining  operations,  to  any 
extent  the  said  Moses  might  deem  advisable,  and  for  working,  removing, 
selling,  using  and  appropriating,  as  the  property  of  the  said  Moses,  for  the 
term  of  ten  years,  all  organic  or  unorganic  minerals,  rocks,  fossils,  marls  or 
so-called  phosphates  that  might  be  found  on,  by  any  person  or  persons,  or 
contained  in,  any  part  of  the  said  plantation,"  which  said  privilege  was, 
however,  subject  to  the  proviso,  "that  the  said  O.  A.  Moses  should  not,  at 
any  one  time,  during  the  aforesaid  term  of  ten  years,  engage  in  working 
over  one-third  part  of  the  said  tract.  The  third  to  be  so  worked  to  be  se- 
lected by  the  said  O.  A.  Moses,  and  such  selection  to  be  made  as  often  as 
the  said  O.  A.  Moses  might  desire."  Within  the  ten  years  A.  licensed  others 
to  mine  phosphates  within  the  said  land.  Held,  Moses  is  entitled  to  an  ac» 
counting  and  to  an  injunction  against  further  mining.  Massot  v.  Moses,  3 
S.  C.  IGS,  16  Am.  Rep.  697    (1871). 

A.  executed  the  following  instrument:  "received  of  B.  $175  in  payment 
of  sand  bar  on  Fall  creek  *  *  *  for  the  year  1S90.  This  Is  for  the  ex- 
clusive right  to  all  gravel  and  sand  for  the  year  above  named  and  excluding 
all  other  parties  from  the  said  premises.  [Signed]  A."  Within  the  year 
A.  conveyed  the  premises  to  C,  who  bought  with  no  knowledge  of  this  in- 
strument. Held,  C.  cannot  enjoin  B.  from  taking  away  gravel;  the  instru- 
ment is  a  lease.  Heywood  v.  Fulmer,  158  Ind.  658,  32  N.  E.  574,  18  L.  R.  A. 
491   (1892). 

A.  executed  to  B,  a  deed  which  contained,  among  others,  the  following 
clause:  "The  said  A.  further  agrees  to  give  to  the  said  B.  the  privilege  ot 
raising  iron  ore  in  his  fields  at  twenty-five  cents  per  ton  *  *  *  and  to 
give  the  privilege  to  none  else."  B.  conveyed  all  his  interests  to  X.  A.  con- 
veyed the  land  owned  by  him  to  Y.,  subject  to  any  rights  that  B.  or  his  as- 
signs might  have  by  virtue  of  the  above  grant.     Held,  X.  cannot  enjoin  1, 


Ch.  1)  PROFITS  163 

ROTHERHAM  v.  GREEN. 

(Court  of  Common  Pleas,  1597.     Cro.  Eliz.  593.) » 

Trespass.  The  defendant  pleads,  that  William  Green,  his  father,  was 
seised  in  fee  of  a  tenement  in  L.  and  that  he  and  all  his  ancestors,  and 
all  those,  &c.  in  the  said  tenement,  from  time  whereof,  &c.  have  used 
to  have  common  in  the  place  where,  &c.  for  all  their  beasts  levant  et 
couchant  upon  the  said  tenement ;  and  that  it  descended  unto  him,  &c. 
Issue  was  taken  upon  the  prescription,  and  a  special  verdict  found, 
viz.  that  Edward  Green,  grandfather  to  the  defendant,  was  seised  of 
the  tenement;  and  that  he  and  all  his  ancestors,  and  all  whose,  &c. 
from  time  whereof,  &c.  had  used  common,  &c.  (according  to  the  pre- 
scription) ;  and  he  being  so  seised,  released  to  Sir  Thomas  Rotherham, 
the  plaintiff's  ancestor,  all  his  right,  and  his  common  in  part  of  the 
land,  where  he  had  the  common,  and  died ;  and  the  tenement  descend- 
ed to  William  Green,  and  from  him  to  the  defendant.  Et  si,  &c. — Drew 
prayed  judgment  for  the  plaintiff.  For  by  release  of  the  common  in 
part  of  the  land,  the  whole  common  is  gone,  and  extinct ;  for  other- 
wise the  tenant  of  the  residue  of  the  land  should  be  charged  with  all 
the  common,  which  is  not  reasonable.  And  thereupon  it  is,  that  if  a 
lord  releaseth  his  signiory  in  one  acre,  all  is  gon6:  as  21  Edw.  3. 
"Scire  Facias,"  112.  is. — Spurling  e  contra;  because  the  commfen  is  ap- 
purtenant, and  it  is  for  the  manurance  of  the  land,  and  stands  with 
common  right. — Anderson.  This  is  not  a  common  of  common  right ; 
for  it  is  for  swine  and  sheep,  and  it  is  not  like  to  Dyer,  339.  where 
the  lord  improved  part  of  the  common,  leaving  sufficient  to  the  com- 
moner, and  infeoft'ed  a  commoner  of  that  part  improved:  for  there 
the  common  is  not  extinct ;  because  the  land  improved  was  discharged 
of  common  before  the  feoffment.  But  this  is  like  to  Rampton's  case, 
which  was  adjudged  in  this  Court ;  where  one  having  common  in  a 
great  field,  wherein  many  men  had  land,  he  purchased  an  acre  from 
one  of  them,  it  was  adjudged  that  all  this  common  was  extinct,  &c. 

from  mining  coal  in  the  land  in  question.  Johnstown  Iron  Co.  v.  Cambria 
Iron  Co..  32  Pa.  241,  72  Am.  Dec.  783  (185S). 

See,  also.  Funk  v.  Haldeman,  53  Pa.  229  (1S6G). 

A,  by  deed  granted  to  B.,'  his  heirs  and  assigns,  the  "sole  and  exclusive 
right  and  privilege"  of  shooting  and  taking  wild  fowl  on  A.'s  land.  Held, 
B.  cannot  indiscriminately  license  other  persons  to  shoot  wild  fowl  on  A.'s 
land.     Bingham  v.  Salene,  15  Or.  208,  14  Pac.  523,  8  Am.  St.  Rep.  152  (18S7). 

An  exclusive  profit  in  gross  may  be  acquired  by  prescription.  Welcome 
V.  Upton,  6  M.  &  W.  536  (1840) ;  Melvin  v.  Whiting,  10  Pick.  (Mass.)  295,  20 
Am.  Dec.  524   (1830). 

As  to  the  form  of  action  maintainable  by  the  owner  of  an  exclusive  profit, 
see  Anon.,  Dver,  285b,  pi.  40  (15C9) ;  Wilson  v.  Mackret,  3  Burr.  1824  (1766) ; 
Cox  V.  Glue,  5  C.  B.  533  (1848) ;  Clap  v.  Draper,  4  Mass.  266,  3  Am.  Dec.  215 
(1808) ;  Hartford  Iron  Mining  Co.  v.  Cambria  Mining  Co..  93  Mich.  90,  53  N. 
W.  4,  32  Am.  St.  Rep.  488  (1892) ;  Kelly  v.  Keys,  213  Pa.  295,  62  Atl.  911,  110 
Am.  St.  Rep.  547  (1906). 

»  S.  c.  2  And.  89 ;  Noy,  67. 


164  RIGHTS   IN   THE   LAND   OP   ANOTHER  (Part  2 

So  here  the  common  also  is  intire  through  the  whole  land:  wherefore 
a  release  \n  part  shall  discharge  the  whole.  The  prescription  also  is 
general,  to  have  common  in  all  the  place,  where,  &c.  and  the  jury  have 
found  a  release  in  part  of  the  land,  and  therefore  the  prescription  is 
found  against  the  defendant. — Beaumond  and  Owen  agreed  with  him 
in  both  points :  but  Walmsley  held,  that  the  common  was  not  gone  for 
the  residue ;  because  this  release  went  in  benefit  of  the  ter-tenant,  and 
it  was  an  improvement  by  him:  but,  as  touching  the  prescription,  he 
agreed,  that  it  was  found  against  the  defendant,  for  the  reason  above- 
said. — Wherefore  they  all  agreed  against  the  defendant.  And  it  was 
adjudged  accordingly.^'* 


DRURY  v.  KENT. 

(Court  of  King's  Bench,  1603.     Cro.   Jac.   14.) 

Replevin.  Upon  a  special  verdict,  the  case  was,  a  man  prescribes 
to  have  common  appurtenant  to  the  manor  of  B.  for  all  his  beasts  levant 
^  couchant:  he  grants  this  common  to  A.  Whether  this  grant  were 
good  or  no?  was  the  question. — And  adjudged,  that  he  could  not  grant 
it  over,  for  he  hath  it  quasi  sub  modo,  viz.,  for  the  beasts  levant  & 
couchant ;  no  more  than  estovers  to  be  burnt  in  a  house  certain :  but 
common  appurtenant  for  beasts  certain  may  be  granted  over.  Where- 
fore it  was  adjudged  ut  supra.^'- 


COLE  V.  FOXMAN. 

(Court  of  Common  Pleas,  1618.     Noy,  30.) 

In  an  action  upon  the  case  by  a  commoner  against  I.  S.  for  charging 
of  the  common,  see  9  Rep.  112.  The  point  was,  A.  seized  of  5  acres, 
and  of  a  common  appurtenant  to  them,  aliens  one  acre,  if  the  common 
be  extinct,  for  part  or  in  the  whole.  And  by  the  Court  it  is  not  extinct, 
for  any  part,  but  it  shall  be  apportioned,  and  no  prejudice  to  the  terre- 
tenant.  And  Hubbard,  Chief  Justice,  who  gave  the  rule  said,  the 
sole  reason  is,  that  otherwise    a   grand    inconvenience    and   mischief 

10  A.  had  50  acres  of  land,  with  common  appurtenant  for  cattle  levant  and 
couchant  thereon  in  two  other  tracts,  one  owned  by  B.  and  one  by  C.  B. 
bought  the  piece  owned  by  A.  Held,  B.  has  no  right  of  pasturage  in  C.'s  land, 
the  court  stating  that  if  the  common  had  been  appendant  instead  of  appur- 
tenant it  would  have  been  apportioned.     Tyrringham's  Case,  4  Co.  36b  (1584). 

So  the  common  is  extinct  in  the  piece  owned  by  O.  if  A-  buys  the  piece 
owned  by  B.     Kimpton  v.  Wood,  1  And.  159  (1586). 

11  Ace:     Daniel  v.  Hanslip,  2  Lev.  67  (1672). 

A.,  the  owner  of  a  tract  of  copyhold  land,  had  by  prescription  the  sole  and 
several  pasturage  of  a  certain  piece  of  land  for  the  whole  year  at  his  will, 
as  belonging  to  his  said  tenement.  He  licensed  X.,  a  stranger,  to  pasture  his 
cattle  on  the  servient  piece.  Held,  the  owner  of  the  servient  piece  cannot 
justify  the  taking  of  X.'s  cattle  as  daraage-feasant.  Hoskins  v.  Kobins,  2 
Saund.  324  (1671).     Compare  Jones  v.  Richard,  6  A.  &  E.  530  (1837). 


Ch.  1)  PROFITS  165 

would  ensue.  For  by  that  all  commons  in  England  shall  be  extinct,  and 
salus  populi  est  summa  lex,  &  apices  juris  non  sunt  jura.  And  the  great 
dispute  in  that  case  was,  for  the  certainty  what  shall  be  said  to  be  cat- 
tle levant  and  couchant.  And  Serjeant  Attee  said,  that  Cook,  Chief 
Justice  in  his  circuit  in  Norff.  said,  that  so  many  of  the  cattle  that  the 
land,  to  which  the  common  is  appurtenant,  may  maintain  in  the  winter, 
so  rnany  shall  be  said  levant  and  couchant.  To  which  Warberton  and 
Hutton  agreed. ^^ 


PHILLIPS  V.  RHODES. 
(Supreme  Judicial  Court  of  Massachusetts,  1843.    7  Mete.  322.) 

The  parties  submitted  this  case  to  the  court  on  agreed  facts,  all  of 
which  appear  in  the  opinion  of  the  court. 

Hubbard,  J.^^  This  is  an  action  of  trespass  for  breaking  and  en- 
tering  the  plaintiff's  close,  and  taking  and  carrying  away  sea  weed. 
The  defendant  pleaded  the  general  issue,  with  notice  that  he  was  the 
lessee  or  servant  of  Mary  Ann  Balch  and  her  husband ;  said  Mary  Ann 
being  a  part  owner  of  the  locus  in  quo,  or  an  owner  of  a  privilege  in 
the  same.  The  taking  of  the  sea  weed  mentioned  in  the  declaration  is 
admitted. 

The  plaintiff  claims  title  to  the  locus  in  quo  under  the  will  of  her 
late  husband,  Benjamin  H.  Phillips,  deceased,  whose  title  was  derived 
by  deed  from  Jonathan  Phillips  and  others,  children  and  heirs  at  law 
of  Gideon  Phillips  and  Rebecca  his  wife,  dated  December  12th,  1797, 
and  a  deed  from  said  Rebecca,  dated  December  11th,  1797.  This  deed 
of  Jonathan  Phillips  and  others  conveys  to  Benjamin  H.  Phillips, 
among  other  parcels  of  land,  the  following :  "All  that  part  of  the  home 
field,  so  called,  excepting  thirteen  poles  laid  out  to  said  Jonathan  Phil- 
lips, that  lieth  southerly  and  westerly  of  a  line  running  southerly 
eighteen  rods  from  said  Jonathan  Phillips's  land  down  the  field-  to  a 
stake;  thence  easterly  ten  and  four  tenth  rods  to  a  stake;  thence  south- 
erly to  the  beach ;  and  contains  four  acres  and  forty  poles,  with  the 
mansion  house  that  was  our  said  father's  and  mother's  on  the  prem- 
ises." 

The  title  under  which  the  defendant  justifies  is  by  a  deed  of  the  same 
date,  from  Jonathan  Phillips  and  others  to  Rebecca  Collins,  wife  of 
Jacob  Collins,  Jr. ;  and  the  description  of  one  of  the  parcels  of  land 
is  the  following:  "Also  two  acres  and  nine  poles  of  land  in  Nahant, 
so  called ;    also  a  privilege  of  getting  what  is  called  sea  dung  on  the 

12 Ace:  Wild's  Case,  8  Co.  7Sb.  (1609).  See  Day  v.  Spooner,  Cro.  Car.  432 
(1636). 

As  to  the  meaning  of  levant  and  couchant,  compare  Scholes  v  Hargreav^es. 
5  T.  R.  46  (3792) ;  Whitelock  v.  Hutchinson,  2  Moo.  &  R.  205  (1S39) ;  Robinson 
V.  Hartopp,  L.  R.  43  Ch.  Div.  484  (1SS9). 

13  Part  of  the  opinion  is  omitted. 


16G  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

beach  below  the  home  field,  that  our  mother  Rebecca  Phillips  hath 
granted  unto  us;  with  all  other  privileges  and  appurtenances  there- 
unto belonging." 

The  above  deeds  were  made  by  the  heirs,  in  the  division  of  the  es- 
tate of  Gideon  and  Rebecca  Phillips.  The  other  lands  of  said  Gideon 
were  assigned  to  his  other  children,  by  deeds  of  division,  and  a  privi- 
lege in  the  beach  was  granted  to  all  of  them  except  those  who  had  part 
of  the  home  field.  The  said  Rebecca  Collins  survived  her  husband, 
and  died  leaving  Ijer  estate  by  will,  after  certain  legacies,  to  her  son 
Phillips  Collins,  .and  to  her  daughter  Mary  Ann  Collins,  and  if  either 
should  die  leaving  no  issue,  the  survivor  was  to  inherit  tlie  whole.  The 
said  Mary  Ann  Collins  married  John  C.  Balch,  and  she  claims  a  privi- 
lege to  take  sea  manure  from  the  beach,  and  has  leased  or  sold  her 
right  to  the  defendant. 

The  land,  to  which  the  defendant  carried  the  manure  from  the  locus 
in  quo,  was  no  part  of  the  estate  formerly  belonging  to  said  Gideon  or 
Rebecca  Phillips.  There  are  about  eighty  direct  descendants  from  the 
six  children  of  Gideon  and  Rebecca  Phillips,  who  claim  each  a  right 
to  take  manure  from  said  beach  by  virtue  of  the  grants  to  their  an- 
cestors of  privileges  in  the  division  deeds. 

The  right  granted  to  the  ancestor  of  Mary  Ann  Balch  was  a  privilege 
of  getting  sea  manure  on  the  beach  below  the  home  field,  which  field 
belonged  to  the  plaintiff.  The  sea  weed  which  is  thrown  up  belongs 
to  the  owner  of  the  beach;  Emans  v.  Turnbull,  2  Johns.  (N.  Y.)  322, 
3  Am.  Dec.  427;  and  so  is  the  subject  of  grant.  The  question  present- 
ed for  consideration  is,  whether  the  grant  tlfus  made  to  Rebecca  Col- 
lins  (similar  grants  having  been  made  to  other  children  of  Gideon  and 
Rebecca  Phillips)  is  a  right  in  gross,  to  be  enjoyed  by  all  the  grantees 
and  their  heirs,  or  whether  it  is  a  right  appurtenant  to  the  particular 
parcel  of  estate  conveyed  in  the  deed  to  which  it  is  annexed.  ~^ 

As  a  right  or  common  in  gross  passes  by  deed,  it  is  necessary  to  con- 
sider-the  terms  of  the  grant,  to  ascertain  the  nature  of  the  estate  in- 
tended to  be  conveyed.  And  we  think  it  is  obvious,  from  the  language 
of  the  deed,  that  the  object  of  the  grant  was  to  benefit  the  owner  of 
the  particular  estate,  by  furnishing  her  with  a  valuable  dressing  for  her 
land,  and  not  to  give  a  personal  right  to  her  and  all  her  heirs  and  their 
assigns,  as  many  as  there  might  be.  The  privilege,  thus  subdivided, 
would  be  of  no  personal  use  or  advantage ;  but  as  appurtenant  to  the 
•particular  estate,  so  that  it  might  be  used  thereon,  it  would  always  en- 
hance its  value.  We  are  therefore  of  opinion,  that  the  grant  created 
by  this  deed  is  an  incorporeal  hereditament,  appurtenant  to  the  estate 
to  which  it  is  annexed,  and  passes  with  it;  -and  consequently,  it  is  a 
right  which  cannot  be  severed  and  sold  separate  from  the  estate,  and 
thus  subdivided  ad  infinitum.  Such  a  sale  of  the  right  to  a  stranger 
would  either  be  a  void  grant,  or  would  extinguish  the  right. 

But  we  do  not  consider,  though  the  privilege  is  appurtenant  to  the 
estate,  that  the  owner  is  confined,  by  the  terms  of  the  grant  to  use  the 


Ch.  1)  PROFITS  167 

dressing  on  the  particular  estate.  Having  taken  the  manure  from  the 
beach,  by  virtue  of  the  privilege,  she  may  use  it  on  other  lands  of  her 
own,  or  dispose  of  it  to  others ;  or  she  can  lease  her  share  of  the  privi- 
lege while  she  remains  an  owner  in  common  of  the  particular  estate. 
If  it  is  said  that  the  privilege  may  in  this  manner  be  subdivided,  and 
the  same  evils  follow  as  would  or  might  flow  from  a  sale  of  the  privi- 
lege independent  of  the  land  to  which  it  is  appurteriant ;  yet  it  must  be 
remembered  that  its  subdivision  can  only  be  such  as  the  piece  of  land 
to  which  it  is  attached  is  subject.  One  person  having  a  right  or  privi- 
lege  may  afso  obtain  more  than  his  just  share  of  the  dressing  cast  up 
during  the  season.  But  such  inequality  in  the  division  is  almost  in- 
evitable from  the  nature  of  the  property  itself,  thrown  up  as  it  is  on 
the  beach,  in  greater  or  less  quantities,  by  the  constant  heaving  of  the 
sea.  But  it  is  also  true,  that  if  one  proprietor  should  be  obstructed  by 
another  proprietor  in  the  enjoyment  of  his  privilege,  he  would  not  be 
without  a  remedy  for  the  obstruction  of  his  right.    *    *    * 

We  notice,  in  the  report  of  the  case,  that  the  said  Mary  Ann  Balch 
either  leased  or  sold  her  right  to  the  defendant  Rhodes.  In  the  opinion 
we  have  expressed,  it  becomes  important  to  settle  the  fact  whether  the 
defendant  is  the  lessee  of  said  Balch's  interest,  or  has  made  an  abso- 
lute purchase  of  the  same.  If  the  former,  the  defendant  may  justify, 
as  acting  under  the  owner,  by  virtue  of  her  lease  to  him.  But  if  he 
justifies  the  entry  and  taking  under  a  sale  of  the  right  to  himself,  he 
takes  nothing  by  the  purchase,  and  is  liable  in  this  action  to  the  plain- 
tiff. And  if  the  fact  cannot  be  agreed,  the  cause  must  be  sent  to  a  jury 
to  ascertain  it. 


HALL  V.  LAWRENCE. 

(Supreme  Court  of  Rhode  Island.  1S52.     2  R.  I.  218,  57  Am.  Dec.  715.) 

[Submission  for  determination  of  the  rights  of  the  parties  under 
their  respective  conveyances. 

On  November  7,  1776,  Nicholas  Taylor  and  Joseph  Wanton  Tay- 
lor were  owners  in  common,  of  a  farm  abutting  on  the  ocean.  On  that 
day  they  executed  a  deed  of  partition  by  which  the  south  part  adjoin- 
ing the  ocean  was  conveyed  to  Nicholas,  and  the  north  part  to  Joseph. 

Other  facts  appear  in  the  court's  opinion.] 

Brayton,  J.^*  The  p^laintifiE  claims  in  this  case  a  right  to  enter  upon 
the  land  of  the  defendant,  being  the  farm  set  off  to  Nicholas  Taylor 
in  the  deed  of  partition  of  1776,  and  to  take  and  carry  away  from  the 
shore  thereof,  mentioned  in  the  deed  of  partition,  sea-weed,  gravel  and 
stone  in  any  quantity  without  limit  at  his  will  and  pleasure  and  to  make 
merchandise  thereof  for  his  profit,  and  a  right  of  way  to  pass  and  re- 
pass to  and  from  said  shore  over  the  defendant's  land  for  that  purpose. 

14  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


r^ 


168  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

This  right  he  claims  as  a  right^jn.  gross,  though,  by  the  deed  of  par- 
tition, he  claims  that  it  was  originally  made  ^jnirtenant  to  the  North 
farm  set  off  in  said  deed  to  Joseph  W.  Taylor,  under  whom  he  claims. 

The  argument  both  for  plaintiff  and  defendant,  proceed  upon  the 
assumption  that  the  right  of  taking  sea-weed,  gravel  and  stone,  what- 
ever it  was,  was  originally  appurtenant  to  the  estate  of  Joseph  W.  Tay- 
lor, and,  indeed,  if  it  were  not  appurtenant,  it  is  evident  the .  plaintiff 
has  no  title,  for  his  deed  from  Armstrong  describes  no  such  right,  and 
unless  it jwas  appurtenant  at  the  time,  he  takes  nothing  by  his  deed. 

In  order  to  ascertain  what  the  rigTits  of  the  plaintifr^how  are,  it  is 
necessary  to  inquire,  first,  what  were  the  rights  originally  granted  in 
said  deed  to  Joseph  W.  Taylor. 

By  the  terms  of  the  deed,  after  setting  off  to  Nicholas  the  south  part 
of  the  original  farm  upon  which  portion  was  all  the  beach,  and  setting 
off  to  Joseph  the  north  part,  which  was  less  in  quantity,  and  we  may 
presume  without  a  beach  privilege  less  in  value,  the  deed  then  pro- 
ceeds and  says:  "And  the  said  Nicholas  Taylor,  doth  grant  free  lib- 
erty of  carrying  away  gravel  and  sea-weed  off  the  beach,  belonging  to 
his  part  of  said  farm,  and  also,  stones  below  high-water  mark  on  said 
beach,  to  the  said  Joseph  W.  Taylor,  his  heirs  and  assigns,  and,  also, 
liberty  to  tip  the  sea-weed  on  the  bank  on  his  part  of  said  land." 

This  grant  is  made  doubtless  to  equalize  the  partition,  to  render  the 
north  part,  which  had  no  shore  where  sand  and  sea-weed  might  be 
obtained  for  improving  and  fertilizing  the  land,  and,  it  may  be,  less 
facilities  for  obtaining  stone  for  building  and  fencing,  equal  in  value 
with  the  south  part. 

\t  will  be  seen  also,  that  the  grant  is  not  limited  in  terms  as  to  quan- 
tity, nor  is  it  defined  in  terms  to  what  uses  it  shall  be  applied  or  for 
what  purposes  tal<en,  so  as  to  furnish  a  just  measure  of  the  amount 
which  Joseph  might  take. 

We  must  however  presume  th^t  it  is  not  to  be  entirely  without  limit, 
extending  to  the  entire  quantity  of  gravel,  sea-weed  or  stone  upon  the 
shore  and  thereby  excluding  Nicholas;  but  that  the  right  of  Joseph 
was  to  be  a  right  in  common  with  Nicholas.  So  it  must  have  been  the 
intent  of  the  parties,  that,  as  the  right  was  created  for  the  benefit  of 
the  north  shore,  and  as  it  must  have  some  limit  as  to  the  amount,  it 
should  be  limited  in  extent  to  the  uses  of  the  land  set  off  to  Joseph,  and 
so  it  must  necessarily  become  appurtenant;  Joseph  would  not,  how- 
ever, be  confined  to  so  much  only  as  might  be  necessary  of  necessity  to 
the  estate,  but  as  the  grant  was  liberal — "free  liberty" — might  take  so 
much  as  he  might  have  occasion  to  use  for  any  purpose  upon  the  estate. 

The  plaintiff's  counsel  contends  that  under  this  grant,  upon  a  just 
construction  of  it,  Joseph  originally  had  a  right  to  take  for  sale  and 
profit,  without  regard  to  any  use,  and  the  case  of  Phillips  v.  Rhodes, 
7  Mete.  (Mass.)  322,  is  cited  to  that  point,  in  which  it  is  held,  that  un- 
der a  right  of  common  to  take  sea-weed  appurtenant  to  the  estate  and 
intended  for  a  dressing  for  the  land,  it  might  when  taken  be  applied 


Ch.  1)  PROFITS  169 

to  that  use  or  sold.  No  reason  is  given  nor  authority  cited,  and  we 
are  left  upon  the  authority  of  the  case  alone.  It  is  not  easy  to  perceive 
the  reason,  if  the  extent  of  the  right  were  to  be  measured  by  the  use  and 
purposes  of  the  estate.  But  without  determining  whether  when  once 
taken  for  use,  the  party  might  not  forego  the  benefit  of  it  to  his  estate 
and  sell  to  another,  the. conclusion  we  think  is  warranted  that  the  sale 
would  not  give  him  a  right  to  take  more  than  reasonably  he  might  have 
taken  had  he  thought  fit  to  use  it  upon  the  estate. 

The  effect  of  the  grant  in  the  deed  of  partition  is  to  create  a  right  > 
of  common  for  sea-weed,  gravel  and  stone,  in  favor  of  the  north  farm  ^ 
set  off  to  Joseph,  and  as  appurtenant  thereto,  to  be  exercised  on  the  ) 
shore  of  the  estate  set  off  to  Nicholas,  giving  a  right  to  take  so  much  I 
as  the  owner  of  the  north  shore  might  think  proper  or  profitable  to  use  / 
on  the  estate. 

There  passed  also,  as  incident  to  this  grant,  a  right  of  passing  and 
repassing  to  and  from  the  shore  oyer  the  land  of  Nicholas,  in  some 
convenient  place  for  the  purpose  of  taking  the  profit.  This  was  neces- 
sary to  the  enjoyment  of  tlie  right  of  common  granted,  and  would 
therefore  pass  by  an  implied  grant,  and  accompany  and  follow  the 
principal  grant  so  long  as  it  existed,  and  only  became  extinguished  with 
the  extinction  of  the  common  itself.     *     *     *      . 

Did  these  rights  pass  to  the  plaintiff  ?  George  Armstrong,  by  his 
deed  of  July  4th,  1835,  conveyed  to  the  plaintiff  all  the  land  originally 
set  off  to  Joseph  W.  Taylor,  in  the  deed  of  partition  of  1776,  with  the 
appurtenances,  and  whatever  rights  of  common  were  then  appurtenant 
to  the  lands  conveyed  or  to  any  portion  of  them  passed  to  the  plaintiff. 
Our  inquiry  then  must  be  directed  to  the  title  which  Armstrong  had 
to  the  common. 

Armstrong's  title  to  the  land  is  derived  to  him  by  two  separate  con- 
veyances. By  the  deed  from  Joseph  W.  Taylor,  of  August  12,  181v3, 
he  acquired  title  to  nineteen  and  three-quarters  acres,  a  portion  of  the 
land  originally  set  off  to  Joseph,  "and  all  the  privileges  and  appurte-  ^^ 

nances  which  I,  the  grantor,  now  have  of  taking  and  carrying  away 
gravel  and  sea-weed  and  all  stones  below  high  water  mark  on  said 
beach,  and  also  to  tip  the  sea-weed  on  the  beach  of  the  said  Nicholas 
Taylor's  land."    Such  are  the  words  of  the  grant. 

But  whether  any  right  of  common  then  remained  appurtenant  to  the 
nineteen  and  three-quarters  acres,  must  depend  upon  the  effect  which 
is  to  be  given  to  the  conveyance  of  Joseph  W.  Taylor  to  his  brother 
Nicholas  of  March  12,  1803.  By  that  deed  Joseph  conveyed  to  Nich- 
olas thirty  acres,  part  of  the  shares  set  oft'  to  him,  to  which  the  \Vhole 
right  of  common  was  made  appurtenant.^^ 

The  defendant's  counsel  claims  that  the  effect  of  the  conveyance  of 

1 B  On  March  19,  1819,  the  title  to  this  30  acres  was  conveyed  to  Armstrong 
subject  to  an  equity  of  redemption  in  Nicholas  Taylor  and  the  douer  right 
of  his  wife. 


170  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

the  thirty  acres  portion  of  the  dominant  estate  is  the  extinguishment 
of  the  whole  common. 

The  first  question  here  raised  is  whether  this  right  of  common  was 
divisible  and  might  or  not  be  apportioned  to  the  several  parts  of  the 
dominant  estate  upon  a  severance  of  the  estate.  In  regard  to  rights  of 
common  which  by  law  are  indivisible,  a  conveyance  of  any  portion  of 
the  dominant  estate  Avill  extinguish  the  whole^  as  in  the  case  of  com- 
mon of  estovers,  Van  Rensselaer  v.  RadcHff,  10  Wend,  (N.  Y.)  639, 
25  Am.  Dec.  582 ;  Livingston  v.  Ketcham,  1  Barb.  (N.  Y.)  592,  and 
the  reason  assigned  is  that  the  service  is  entire  and  appurtenant  to  an 
entire  estate,  and  npt  being  divisible  it  cannot  be  appurtenarit  To^'part 
of  the  estate  as  an  entire  service. 

There  are,  however,  other  rights  of  common  which  are  in  law  divisi- 
ble, and  in  all  such  cases  it  may  be  apportioned  to  the  several  parts  of 
the  dominant  estate  upon  its  severance  by  different  conveyances.  A 
right  of  pasture  for  cattle  san  nombre  is  of  this  kmd.  In  such  case 
it  is  held  that  though  the  right  be  unlimited  in  terms,  yet  it  is  intended 
for  the  use  of  the  estate  and  limited  to  such  cattle  as  may  be  kept  upon 
the  dominant  estate  or  upon  any  portion  of  it,  and  equally  upon  any 
portion,  so  that,  upon  a  division  of  the  dominant  estate  and  upon  ap- 
portionment of  the  service  to  the  several  parts,  the  servient  estate  is 
not  charged  to  any  greater  extent  than  before  or  with mor^xattle.  And 
the  rule  is  that  wherever  the  common  is  admeasurable  the  common  is 
'}'  apportionable.    Tyrringham's  case,  4  Co.  35.    But  the  right  being  meas- 

ured by  the  uses  of  the  estate  cannot  be  severed  from  the  estate  and 
granted  over.    Drury  v.  Kent,  Cro.  J.  15. 

This  right  in  the  present  case  is  of  the  same  nature.  It  is  intended 
for  the  use  of  the  estate  and  for  every  acre  of  it,  and  that  equally  and 
whether  the  right  be  divided  or  not,  the  measure  is  the  same.  I^  may 
therefore  be  divided,  and,  by  a  conveyance  of  a  part  of  the  dominant 
estate,  it  would  be  apportioned  to  the  part  conveyed  and  so  much  might 
well  pass  with  it  under  the  term  appurtenance. 

This  conveyance  may  be  afifected  by  another  rule,  for  although  the 
common  may  be  in  its  nature  divisible  and  apportionable,  yet,  ifjhe  ef j 
Ject  of  the  conveyance  is  to  surcharge  the  servient  estate,  it  shall  not 
Only  not  be  apportioned,  but  shall  become  extinct  for  the  whole. 

And  for  the  same  reason  it  is,  that  a  release  of  a  portion  of  the 
servient  estate  or  purchase  of  part  of  the  servient  by  the  sole  owner  of 
the  dominant  shall  extinguish.  In  Rotherham  v.  Green,  Cro.  E.  593, 
there  was  a  release  of  part  of  the  land  in  which,  &c.  In  Kimpton  v. 
Bellamyes,  Leonard,  43,  the  owner  of  the  dominant  purchased  two 
acres  of  forty  of  the  servient  estate.  In  these  cases  the  effect  was  to 
surcharge  the  residue.     So,  in  Tyrringham's  case,  4  Co.  35.     *     *     * 

And  the  rule  deducible  from  all  the  cases  is,  as  before  stated,  that  if 
the  effect  of  the  conveyance  is  to  surcharge  the  common  and  burthen 
to  a  greater  extent  the  servient  estate,  it  shall  extinguish;  if  otherwiie, 


Ch.  1)  PROFITS  171 

there  shall  be  an  apportionment  and  such  portion  will  pass  as  appurte- 
nantr 

By  this  rule  the  portion  of  common  belonging  to  the  thirty  acres 
would  become  severed  from  the  residue,  which  would  remain  appurte- 
nant to  the  nineteen  and  three-quarters  acres  retained  by  Joseph  Tay- 
lor, and  the  thirty  acres  would  become  a  distinct  dominant  estate. 

But  inasmuch  as  the  title  to  tlie  dominant  estate,  by  virtue  of  the 
conveyance,  became  united  in  the  hands  of  Nicholas  with  the  servient 
estate,  all  the  common  appurtenant  to  the  thirty  acres  thereby  became 
extinguished  by  unity  of  title.  It  has  not  been  revived  by  any  of  the 
conveyances  so  as  to  pass  by  the  term  appurtenance  in  the  deed  of 
Armstrong  to  the  plaintiff. 

The  defendant's  counsel  claims  that,  although  such  would  be  the  ef- 
fect of  the  deed  to  a  stranger,  who  immediately  conveys  to  the  servient 
owner,  yet,  if  made  directly  to  the  servient  owner,  the  whole  is  ex- 
tinguished. 

Now,  bearing  in  mind  the  reasoning  on  the  cases  generally  upon  the 
subject  and  the  rules  deducible  from  them,  we  should  not  expect  to 
find  a  case  in  which  it  should  be  held  that,  where  the  conveyance  does 
not  directly  surcharge  the  common  remaining,  and  where  the  servient 
owner  can  in  no  wise  suffer  injury,  the  whole  common  should  become 
extinguished  and  that  against  the  apparent  intent  of  the  parties,  but 
that  effect  would  be  given  in  such  case  to  the  clear  intent. 

There  is,  however,  in  Tyrringham's  case,  the  annunciation  of  such  a 
rule  as  the  defendant's  counsel  claims.  It  is  this :  That  common  ap- 
purtenant cannot  be  extinct  in  part  and  in  esse  for  part  by  act  of  the 
parties,  for  that  common  appurtenant  was  against  common  right. 
Taken  in  the  broad  sense  which  counsel  gives  it,  and  independent  of 
the  connection  in  which  it  is  used,  it  might  support  the  ground  which 
the  counsel  assumes.  But  taken  with  its  connection,  it  is  evident  that 
it  was  not  applied  or  intended  to  apply  to  such  a  case  as  is  now  before 
us.  The  same  rule  exists  in  relation  to  rent  charge,  which  is  said  to 
be  against  common  right  as  distinguished  from  rent-service  which  is 
deemed  of  common  right.     *     *     * 

Now  Tyrringham's  case  when  carefully  examined,  it  will  be  seen, 
does  not  come  up  to  the  point  made  by  the  defendant's  counsel.    *    *    * 

Now,  the  case  was :  The  owner  of  part  of  the  servient  became  own- 
er of  the  whole  dominant  and  so  interested  in  surcharging  the  residue 
of  the  servient. 

But,  in  order  to  fully  understand  the  case  and  the  point  immediately 
before  the  court,  it  must  be  borne  in  mind  that  so  far  as  the  severance 
and  apportionment  of  the  common  to  the  dominant  estate  is  concerned, 
there  is  no  difference  in  the  rule  of  law  applicable  to  the  common  ap- 
purtenant or  common  appendant.  In  either  case,  upon  severance  of 
the  dominant  estate  the  common  was  apportionable.  The  difference 
between  the  two  related  to  the  servient  estate,  and  the  court  in  a  pre- 
ceding part  of  the  case  had  resolved  that  common  appendant  being  of 


172  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

common  right,  might  not  only  be  apportioned  to  the  land  to  which,  &c., 
but  would  also  be  apportioned  upon  the  severance  of  the  estate  in 
which,  &c.,  and  they  say,  that  as  to  this  kind  of  common,  if  the  com- 
moner aliene  part  the  land  in  which,  &c.,  yet  the  common  shall  be  ap- 
portioned. But  it  was  not  so  with  common  appurtenant.  In  such  case 
there  could  be  no  apportionment  to  the  servient  estate.  And,  there- 
fore, the  court  was  obliged  to  say,  referring  particularly  to  the  part  of 
the  case  before  them,  that  by  this  purchase  the  common  was  extinct  for 
the  whole,  for  in  such  case  common  appurtenant  could  not  be  extinct 
in  part  and  in  esse  for  part  by  act  of  the  parties. 

There  never  was  any  difficulty  in  releasing  a  portion  of  the  service 
charged  upon  the  servient  estate.  The  only  difficulty  was  in  releasing 
any  portion  of  the  servient  estate  wholly  from  all  service,  and  that,  be- 
cause it  could  not  be  apportioned.     *     *     * 

We  are  then,  upon  the  whole,  of  the  opinion  that  the  deed  from 
Joseph  W.  Taylor  to  Nicholas  Taylor,  of  the  thirty  acres,  operated  as 
a  severance  and  apportionment  of  the  common,  and  that  the  part  ap- 
portioned to  the  thirty  acres  became  extinguished  and  lost,  but  that 
the  conveyance  did  not  operate  to  extinguish  the  residue  of  the  com- 
mon apportionable  to  the  nineteen  and  three-quarters  acres,  and  that 
so  much  passed  by  Armstrong's  deed  of  July  4th,  1835,  to  the  plaintiff, 
with  a  right  of  way  as  incident  of  it  and  necessary  to  the  enjoyment. 

Had  the  plaintiff  remained  owner  of  the  whole  of  this  lot  of  nine- 
teen and  three-quarters  acres,  he  would  still  have  been  entitled  to  the 
common  appurtenant.  But  his  right  has  again  been  affected  by  his  con- 
veyance to  Robert  H.  Ives,  of  nine  and  three-quarters  acres,  part  of 
the  nineteen  and  three-quarters  acres."  Had  he  made  no  reservation 
of  the  common  in  that  deed,  there  would  have  been  an  apportionment, 
and  Ives  would  have  taken  the  portion  belonging  to  nine  and  three- 
quarters  acres,  for  though  such  common  may  be  apportioned,  ijt_could 
not  be  severed  from  the  estate  and  granted  over,  (Drury  v.  Kent,  Cro. 
J.  15,)  and,  because  it  could  not  be  severed,  the  plaintiff  could  not  re- 
tain it  to  himself.  If  it  exist  at  all,  it  must  exist  with  the  estate,  the 
uses  of  which  it  is  to  attend  and  minister  to. 

The  plaintiff',  then,  at  the  time  of  filing  his  bill  in  this  case,  had  a 
right  of  common  to  take  from  the  shore  of  the  defendant's  estate  sea- 
weed and  gravel,  and  stones  below  high-water  mark,  at  all  times  at  his 
will  and  pleasure,  for  such  purposes  as  he  might  think  proper  to  use 
them  upon  his  estate;  but  this  right  did  not  extend  to  the  thirty  acres, 
to  which  Armstrong  derived  title  under  the  mortgage  of  Nicholas  Fry 
to  the  Bank  of  Rhode  Island,  all  right  being  extinguished  as  to  that, 
but  was  limited  to  that  portion  of  the  nineteen  and  three-quarters  acres 

16  This  conveyance  to  Ives  by  the  plaintiff  expressly  reserved  "the  privi 
leges  of  sand,  gravel  and  sea  weed  upon  the  south  shore  of  the  Taylor  farm 
and  of  tipping  the  sea  weed  on  the  bank  thereof  as  appurtenant  to  the  resi- 
due of  the  said  Joseph  W.  Taylor  farm  retained  by"  the  plaintiff. 


Cb.  1)  PROFITS  173 

conveyed  by  Joseph  W.  Taylor  to  Armstrong,  by  deed  of  August  .12th, 
1813,  which  the  plaintiff  has  not  conveyed  to  Robert  H.  Ives;  and  he 
had,  also,  a  right  of  way  to  and  from  his  said  land  to  the  shore  for  the 
purpose  of  exercising  this  right  as  incident  and  necessary  to  its  en- 
joyment. 

This  is  the  extent  of  his  right  in  our  view  upon  the  deeds  and  con- 
veyances put  before  us.^^ 


HUNTINGTON  v.  ASHER. 

(Court  of  Appeals  of  New  York,  1884.    96  N.  Y.  604,  48  Am.  Rep.  652.) 

One  Hogan  owned  a  tract  of  land  on  which  was  a  large  pond.    On 
^  November  3,  1869,  he  conveyed  to  one  J.  H.  Asher  a  half  acre  of  land 
adjoinin^the  gond.    The  deed  contained  the  following  provision: 

"And  the  party  of  the  first  part,  as  incident  to  this  conveyance,  also 
grants  and  conveys  to  the  party  of  the  second  part,  his  heirs  and  as- 
signs, the  exclusive  right  to  take  ice  from  the  pond  of  the  party  of  the 
first  part,  with  the  right  and  privilege  of  access  for  that  purpose  to  and 
from  the  pond  to  the  ice-house  to  be  erected  on  the  lot  hereby  con- 
veyed. 

"In  consideration  of  which  said  grant,  as  aforesaid,  the  party  of  the 
second  part  hereby  covenants  and  agrees  for  himself  and  his  heirs  and 
assigns  to  furnish  and  deliver  to  the  party  of  the  first  part  (so  long  as 
he  shall  continue  to  occupy  his  present  residence),  free  of  charge,  all 
the  ice  which  he  shall  require  for  his  own  family  use,  and  also  to  fur- 
nish and  deliver  to  the  purchaser  or  purchasers  of  the  pond  and  mill 
privilege  and  their  heirs  and  assigns,  free  of  charge,  all  the  ice  which 
they  shall  require  for  their  own  family  use,  so  long  as  they  continue  to, 
reside  in  the  village  of  Rhinebeck." 

The  residue  of  Hogan's  land  came  by  mesne  conveyances  to  the 
plaintiff,  each  conveyance  being  expressed  to  be  subject  to  Asher's 
right.  Subsequently  J.  H.  Asher  conveyed  to  the  defendant,  Emeline 
Asher,  his  half  acre  with  the  appurtenances,  but  made  no  mention  of 
the  right  to  cut  ice.  The  plaintiff  contended  that  the  defendant  had  no 
right  to  cut  ice  and  brought  this  bill  for  an  injunction. 

Finch,  J.^*  The  contract  of  purchase  and  sale  between  the  original 
parties  contemplated  the  creation  of  a  right  to  take  ice  from  the  unsold 
lands  of  the  grantor  as  an  incident  to  the  conveyance  of  the  half  acre 

17 A,  conveyed  a  farm  to  B.  in  fee,  "together  with  the  free  liberty  •  •  * 
of  cutting  timber  *  *  *  for  building,  fencing,  and  fuel  *  *  *  for 
the  use  of  the  said  hereby  released  lands  only"  in  certain  land  still  belong- 
ing to  A.  Part  of  B.'s  farm  came  to  C.  Held,  C.  has  no  right  to  cut  timber 
for  the  above  mentioned  uses  of  his  farm.  Van  Rensselaer  v.  Radcliff,  10 
Wend.  (N.  Y.)  '639,  25  Am."  Dec.  582  (1833). 

18  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


17)4  RIGHTS  IN  THE   LAND   OF  ANOTHER  (Part  2 

and  an  appurtenance  of  the  land  conveyed.  It  is  impossible  to  study 
the  arrangement  in  its  details  and  arrive  at  a  different  conclusion.  The 
half  acre  of -land  was  purchased  for  the  known  and  declared  purpose 
of  erecting  thereon  an  ice-house  to  store  the  product  of  the  pond,  and 
as  a  means  of  conducting  the  ice  business.  The  terms  of  the  deed  sub- 
stantially so  declare,  and  the  fact  is  not  denied  by  the  findings  of  the 
trial  court.  The  right  thus  given  was  a  natural,  appropriate,  and  nec- 
essary adjunct  of  the  land  conveyed,  having  in  view  the  purpose  for 
which  it  was  purchased,  on  the  one  hand,  and  sold,  on  the  other.  There 
was  no  sale  of  the  right  in  gross  for  its  own  sole  and  separate  consid- 
eration, but  the  price  of  the  land  paid  and  to  be  paid  covered  the  land 
with  its  fight  attached.  The  arrangement  was  meant  to  be  continuous^ 
and  to  follow  the  two  estates  irrespective  of  their  ownership.  The  con- 
veyance of  the  right,  like  that  of  the  land,  was  to  the  grantee  and  his 
assigns,  and  the  former  was  declared  in  terms  to  pass  as  "incident"  to 
the  grant  of  the  latter.  And  then  the  grantee,  "for  himself,  his  heirs 
and  assigns,"  covenants  to  furnish  ice  to  the  successive  grantees  of  the 
pond  and  mill  privilege  so  long  as  they  reside  in  the  town  of  Rhine- 
beck.  The  contract  thus  contemplated  a  dominant  and  servient  es- 
tate. If  a  mill,  dependent  upon  water-power,  had  stood  upon  the  half 
acre,  the  right  to  draw  from  the  pond  would  have  passed  with  the 
land  as  an  appurtenant  easement,  if  such  had  been  the  actual  situation 
of  the  premises,  or  the  express  agreement  of  the  parties.  If  no  mill 
and  no  raceway  were  there,  but  the  purchase  was  for  the  purpose  of 
erecting  them  and  the  deed  gave  the  water-right  accordingly  and  as  in- 
cident to  the'  conveyance,  such  right  would  become  an  appurtenance, 
at  least  when  exercised,  and  pass  with  the  land.  But  the  right  in  ques- 
tion here  is  of  a  somewhat  different  character,  and  upon  that  difference 
is  founded  the  conclusion  of  the  General  Term,  and  much  of  the  argu- 
ment before  us. 

The  opinion  below  asserts  that  the  right  under  consideration  was  not 
an  easement  attached  to  a  dominant  estate,  and  not  an  appurtenance  of 
the  latter.  The  reason  assigned  is  in  these  words :  "A  right  by  which 
one  person  is  entitled  to  remove  and  appropriate  for  his  own  use  any 
thing  growing  in,  or  attached  to,  or  subsisting  upon  the  land  of  anoth- 
er for  the  purpose  of  the  profit  to  be  gained  from  the  property  there- 
by acquired  in  the  thing  removed,  has  always  been  considered  in  law  a 
different  species  of  right  from  an  easement.  Such  right  is  a  privilege, 
and  so  is  an  easement ;  but  the  latter  is  a  privilege  without  profit,  and 
is  mereljf  accessorial  to  the  rights  of  property  in  land,  while  the  former 
is  the  reverse.  If  granted  to  one  in  gross  it  is  so  far  of  the  character 
of  an  estate  or  interest  in  the  land  itself  that  it  is  treated  as 
such."    *    *    * 

It  must  be  admitted  that  the  strict  and  technical  definition  of  an  ease- 
ment excludes  a  right  to  the  products  or  proceeds  of  land,  or,  as  they 
are  generally  termed,  profits  a  prendre      But  that  such  a  right  is  in 


Ch.  1)  PROFITS  175 

the  nature  of  an  easement,  and  although  capable  of  behig  transferred 
in  gross,  may  also  be  attached  to  land  as  an  appurtenance  and  pass  as 
such,  is  shown  by  the  authorities  to  which  the  General  Term  refer. 
In  Post  V.  Pearsall,  supra  [22  Wend.  425],  the  language  of  the  chan- 
cellor is,  "for  a  profit  a  prendre  in  the  land  of  another,  when  not  grant- 
ed in  favor  of  some  dominant  tenement,  cannot  properly  be  sflTTTio  be 
an  easement,  but  an  interest  or  estate  in  the  land  itself."  That  it  may 
be  so  granted  by  the  terms  of  the  grant  as  to  become  an  appurtenant 
right  in  the  nature  of  an  easement  is  implied  in  the  citation.  Wash- 
burn, to  whose  discussion  of  the  subject  we  are  referred,  says  distinct- 
ly, "this  right  of  profit  a  prendre,  if  enjoyed  by  reason  of  holding  a 
certain  othe'r  estate,  is  regarded  in  the  light  of  an  easement  appurtenant 
to  such  estate ;"  (Wash,  on  Eas.  8,  §  7) ;  and  alluding  also  to  rights 
acquired  by  custom  or  dedication,  the  author  adds :  "it  would  be  diffi- 
cult to  treat  of  easements  or  servitudes,  without  embracing  these  rights, 
as  well  as  that  of  taking  profits  in  another's  land  which  one  may  enjoy 
in  connection  with  the  occupancy  of  the  estate  to  which  such  right  is 
united."  It  seems,  therefore,  to  be  the  law,  that  a  right  to  take  a  profit 
from  another's  land,  although  capable  of  being  transferred  in  gross, 
may  also.be  so  attached  to  a  dominant  estate  as  to  pass  with  it  by  a 
grant  transferring  the  land  with  its  appurtenances.     *     *     * 

An  instructive  case  on  this  point  is  that  of  Grubb  v.  Guilford,  4 
Watts  (Pa.)  223,  28  Am.  Dec.  700.  There,  on  sale  of  twenty  acres  of 
ore-bank,  a  right  was  also  given  to  the  grantee  to  enter  upon  other 
lands  of  the  grantor  and  search  for  iron  ore,  and  mine  and  carry  it 
away.  The  question  was  whether  such  right  was  appurtenant  to  the 
twenty  acres,  and  it  was  held  that  it  was  not.  Among  the  reasons  giv- 
en were  that  a  separate  consideration  for  the  ore  mined  was  to  be  given, 
and  that  the  right  was  in  no  manner  necessary  to  the  use  or  occupation 
of  the  twenty  acres,  and  did  not  concern  or  affect  it  at  all.  The  furnace 
to  be  supplied  was  on  other  lands,  and  the  court  said  that  the  argument 
tended  only  to  show  that  the  right  was  appurtenant  to  the  furnace,  and 
not  to  the  twenty  acres,  because  while  it  was  needed  for  the  one,  it  was 
not  for  the  other,  and  in  no  manner  concerned  it.     *    *    * 

The  whole  question,  thus,  turns  upon  the  inquiry  whether  the  priv- 
ilege granted  was  of  such  a  character  as  to  be  in  the  nature  of  an  ease- 
ment and  become,  when  exercised,  an  appurtenance.  It  does  not  con- 
cern or  inhere  in  the  land  precisely  like  a  right  of  way  which  is  essen- 
tial or  convenient  irrespective  of  the  use  to  which  the  land  is  put,  but 
does  do  so  relatively  to  that  use,  as  in  the  case  of  land  used  for  a  mill  or 
for  the  manufacture  of  iron.  In  those  cases,  as  in  this,  the  use  for 
which  the  land  was  bought,  and  which  characterized  the  contract  of 
purchase.,  became  the  essential  element  by  which  the  privilege  granted 
was  to Jbe  measured  and  judged.  The  right  to  take^ice  from  the  pond 
was  the  one  essential  thing  leading  to  the  purchase  of  the  half  acre, 
justTrymg  the  building  put  upon  it,  and  making  possible  the  perform- 


176  RIGHTS  IN  THE   LAND   OF  ANOTHER  l^Pait  2 

ance  of  the  covenants  for  supply.  We  think  that  right  passed  to  the 
present  defendant. 

The  judgment  should  be  reversed  and  a  new  trial  granted,  costs  to 
abide  the  event.    All  concur. 

Judgment  reversed.^® 

SMITH  ,v.  GATEWOOD. 

(Court  of  King's  Bench,  1G07.     Cro.  Jac.  152.) 

Trespass  in  a  place  called  Horsington  Holms.  The  defendant  justi- 
fies, for  that  Stixwold  is  an  ancient  vill  adjoining  to  the  place  where, 
&c.  and  that  within  the  said  vill  is,  and  time  whereof,  &c.  hath  been 
such  a  custom ;  that  every  inhabitant  within  any  ancient  messuage, 
within  the  said  vill,  by  reason  of  his  commorancy  therein,  hath  had 
common  in  the  place  where,  for  all  his  great  beasts,  at  all  times  of  the 
year,  &c. ;  and  so  justifies  as  an  inhabitant.  And  it  was  thereupon  de- 
murred, whether  such  a  prescription  and  usage  in  a  vill  for  the  inhab- 
itants for  common  and  matter  of  profit  be  good? 

After  argument  at  Bar  and  Bench,  it  was  resolved,  that  it  was  not 
good;  for  inhabitants,  unless  they  be  incorporated,^"  cannot  prescribe 
to  have  profit  in  another's  soil,  but  only  in  matters  of  easement,  as  in  a 
way  or  causey  to  church,  or  such  like :  so  in  matters  of  discharge,  as  to 
be  discharged  of  toll,  or  of  tythes,  or  in  modo  decimandi,  or  the  like : 
but  to  have  interest  it  cannot  be ;  for  that  ought  to  be  by  persons  in- 
abled,  who  are  always  to  have  continuance :  for  if  there  should  be  such 
prescription,  then,  if  any  of  the  inhabitants  depart  from  their  ancient 
houses,  and  the  house  continues  empty,  the  inheritance  of  the  common 
should  be  suspended;  which  cannot  be.  Nor  can  such  a  common  be 
released;  for  if  one  inhabitant  should  release,  another  which  succeed- 
ed him  might  claim  it;  which  is  against  the  rules  of  law,  that  an  in- 
heritance in  a  profit  should  not  be  discharged :  and  by  such  prescrip- 
tion a  maid  servant  or  child  who  resides  in  the  house  is  said  to  be  an 

10 Ace:     Grubb  v.  Grubb,  74  Pa.  25   (1S73). 

A.  claimed,  by  prescription  of  himself  and  his  predecessors  in  title  of  a 
certain  piece  of  land,  as  appurtenant  thereto,  the  right  to  go  on  the  ad- 
jacent land  of  B.  and  there  cut  down  and  carry  away  for  all  purposes  the 
trees  there  growing.  Held,  A.  cannot  assert  such  a  right  by  virtue  of  his 
ownership  of  the  land.  Bailey  v.  Stephens,  12  C.  B.  N.  S.  91  (1862);  see 
Heyward  v.  Cannington,  1  Siderfin,  354  (1668). 

A.  owned  a  farm ;  he  conveyed  in  fee  a  strip  to  a  railroad  company.  The 
deed  contained  the  following  clause:  "Said  parties  of  the  first  part  to  have 
the  privilege  of  mowing  and  cultivating  the  surplus  ground  of  said  strip  of 
land  not  required  for  railroad  purposes."  The  farm  was  subsequently  con- 
veyed to  B.  Held,  B,  does  not  have  the  right  to  cultivate  the  strip.  Pierce 
v.  Keator,  70  N.  Y.  419,  26  Am.  Rep.  612    (1877). 

2  0  See  Boteler  v.  Bristow,  Y.  B.  15  E.  4,  129,  pi.  7,  (1475) ;  White  v.  Cole- 
man, Freem.  134  (1673).     Compare  Sale  v.  Pratt,  19  Pick.  (Mass.)  191  (1837). 

See.  also,  Goodman  v.  Mayor  of  Saltash,  L.  R.  7  A.  C.  633  (1882) ;  Johnston 
V,  O'Neil,  [1911]  A.  C.  552;  Harris  v.  Chesterfield,  [1911]  A.  C.  623, 


Ch.  1)  PROFITS  17t 

inhabitant,  and  to  have  the  benefit  of  the  common ;  which  would  be  in- 
convenient. Wherefore  they  all  resolved,  that  such  a  custom  alledged 
by  way  of  usage  (not  otherAvise)  is  not  good;  and  adjudged  it  for  the 
plaintiff.  It  was  said  to  be  so  resolved  in  Trinity  Term,  33  Eliz.  Roll 
422.  Lawrence  v.  Hull;  and  Coke  cited,  that  in  19  Hen.  8,  in  Spel- 
man's  Reports,  it  was  adjudged  accordingly  in  this  court.  Vide  7 
Edw.  4  pi.  26.  15  Edw.  4  pi.  29.  18  Edw.  4  pi.  3.  20  Edw.  4  pi.  10.  9 
Hen.  6  pi.  62.     18  Hen.  8  pi.  1." 


RACE  V.  WARD. 

(Court  of  Queen's  Bench,  1855.     4  EI.  &  Bl.  702.) 

Lord  Campbell,  C.  J.^^  The  first  count  of  the  declaration  is  for 
breaking  and  entering  the  plaintiff's  close  in  the  township  of  Horbury, 
and  committing  various  trespasses  therein.  The  defendants  justify 
under  an  immemorial  custom  in  the  said  township  for  ail  the  inhabit- 
ants for  the  time  being  in  the  said  township  to  have  the  liberty  and  priv- 
ilege to  have  and  take  water  from  a  certain  well  or  spring  of  water  in 
the  said  close  in  which,  &c.,  and  to  carry  the  same  to  their  respective 
dwelling-houses  in  the  said  township,  to  be  used  and  consumed  therein 
for  domestic  purposes. 

The  plaintfff  demurs :  and  it  has  been  argued  before  us  that  the  plea 
is  bad,  because  it  claims  a  right  for  all  the  inhabitants  of  the  township 
to  take  a  profit  a  prendre  in  alieno  solo. 

But  we  are  of  opinion  that  no  such  right  is  claimed  by  the  alleged 
custom.  The  action  is  not  for  taking  water  the  property  of  the  plain- 
tiff ;  and  no  such  action  could  be  supported  unless  the  water  were  con- 
tained in  a  cistern  or  some  vessel  in  which  he  had  placed  it  for  his  pri- 
vate use.  The  defendants  have  to  answer  the  charge  of  having  unlaw- 
fully broken  and  entered  the  plaintiff's  close,  and  trampled  and  injured 
his  grass  growing  there,  &c.  In  doing  so  they  certainly  claim  a  right  by 
immemorial  custom,  in  all  the  inhabitants  of  the  township,  to  take  wa- 
ter from  a  spring  issuing  from  the  close,  and  to  carry  it  to  their  dwell- 
ing-houses for  domestic  purposes :  but  this  claim  is  made  with  the 
view  of  excusing  the  alleged  trespasses  in  entering  the  close  and  injur- 
ing the  grass,  &c. 

The  water  which  they  claim  a  right  to  take  is  not  the  produce  of  the 
plaintiff's  close;  it  is  not  his  property;  it  is  not  the  subject  of  prop- 
erty. Blackstone,  following  other  elementary  writers,  classes  water 
with  the  elements  of  light  and  air.    Vol.  2,  p.  14.    Afterwards,  having 

21  Ace:     Grimstead  v.   Marlowe,  4  T.   R.  717    (1792);    Smith  v.  Andrews, 
[1891]  2  Ch.  678  (fishing) ;  Hill  v.-  Lord,  48  Me.  S3  (1861),  taking  seaweed. 
,    22  Part  of  the  opinion  is  omitted. 

1,  BlG.RlGHTS — 12 


178  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

Stated  that  a  man  cannot  bring  an  action  to  recover  possession  of  a 
pool  or  other  piece  of  water,  either  calculating  its  capacity,  as  for  so 
many  cubical  yards,  or  by  superficial  measure  for  twenty  acres  of  wa- 
ter, he  gives  the  i:eason:  "For  water  is  a  movable  wandering  thing, 
and  must  of  necessity  continue  common  by  the  law  of  nature."  lb.  p. 
18.  It  is  not  disputed  that  this  would  be  so  with  respect  to  the  water  of 
a  river  or  any  open  running  stream.  We  think  it  is  equally  true  as  to 
the  water  of  a  spring,  when  it  first  issues  from  the  ground.  This  is  no 
part  of  the  soil,  like  sand,  or  clay,  or  stones ;  nor  the  produce  of  the 
soil,  like  grass,  or  turves,  or  trees.  A  right  to  take  these  by  custom, 
claimed  by  all  the  inhabitants  of  3.  district,  would  clearly  be  bad ;  for 
they  all  come  under  the  category  of  profit  a  prendre,  being  part  of  the 
soil  or  the  produce  of  the  soil:  and  such  a  claim,  which  might  leave 
nothing  for  the  owner  of  the  soil,  is  wholly  inconsistent  with  the  right 
of  property  in  the  soil.  But  the  spring  of  water  is  supplied  and  renew- 
ed by  nature ;  it  must  have  flowed  from  a  distance  by  an  underground 
channel ;  and,  when  it  issues  from  the  ground,  till  appropriated  for  use, 
it  flows  onward  by  the  law  of  gravitation.  While  it  remains  in  the  field 
where  it  issues  forth,  in  the  absence  of  any  servitude  or  custom  giving 
a  right  to  others,  the  ©.wner  of  the  field,  and  he  only,  has  a  right  to  ap- 
propriate it ;  for  no  one  else  can  do  so  without  committing  a  trespass 
upon  the  field ;  but,  when  it  has  left  his  field,  he  has  no  more  power 
over  it,  or  interest  in  it,  than  any  other  stranger. 

For  these  reasons  it  has  been  considered  that  the  inhabitants  of  a  dis- 
trict may,  by  custom,  have  a  right  to  go  upon  the  soil  of  another  to  take 
or  to  use  water.  On  examining  the  Yearbook,  Trin.  15  Ed.  4,  fol.  29  A. 
pi.  7,  cited  at  the  bar,  it  would  appear  that  Genney,  as  counsel,  says 
it  would  be  a  good  prescription  that  all  the  inhabitants  in  such  a  vill 
have  used  from  time  immemorial  to  have  the  water  in  such  a  pond  to 
drink,  &c.  Catesby,  then  a  judge,  assents  to  this,  and  he  likens  it  to 
a  custom  for  all  the  fishermen,  inhabitants  in  a  particular  vill,  to  have 
a  right  to  dry  their  nets  on  a  particular  close.  There  the  word  "pre- 
scription" is  used ;  but  there  is  no  prescription  stated  in  a  que  estate ; 
and  a  customary  right  by  reason  of  inhabitancy  in  a  particular  district 
is  evidently  described  and  intended. 

In  Weekly  v.  Wildman,  1  Ld.  Raym.  407,  we  find  certain  obiter  dicta 
upon  this  subject  which  are  entitled  to  some  weight.  "Blencowe,  J. 
Inhabitants  may  have  a  custom  to  have  pot  water,  which  is  an  interest, 
and  not  barely  an  easement.  But  Powell,  J.,  denied  that,  and  said  that 
it  is  only  an  easement."  Both  these  learned  Judges  agree  that  inhabit- 
ants may  have  a  right  to  enter  the  soil  of  another  to  take  pot  water; 
and  only  differ  as  to  the  name  to  be  given  to  it,    *    *    * 

The  authorities  relied  upon  by  Mr.  Unthank  are  not  inconsistent  with 
this  doctrine.  His  quotation  from  Bracton  does  not  prove  that  the 
right  to  take  water  when  flowing  in  its  natural  course  is  a  profit  a 
prendre;  and  the  learned  author  of  that  treatise,  by  the  words  he  uses 
immediately  after,  shows  that  he  was  well  aware  of  the  distinction 


Ch^  1)  PROFITS  179 

between  such  water  and  water  in  a  cistern,  which  is  the  subject  o£  pri- 
vate property. 

In  Wickham  v.  Hawker,  7  M.  &  W.  63,  the  Court  of  Exchequer 
held  that  a  "liberty,  with  servants  or  otherwise,  to  come  into  and  upon" 
lands,  "and  there  to  hawk,  hunt,  fish,  and  fowl,"  is  a  profit  a  prendre 
within  the  prescription  act,  2  &  3  W.  4,  c.  71 :  but  that  liberty  and  a 
liberty  to  take  water  are  so  different  that  they  furnish  no  safe  analogy 
to  guide  us  in  this  case. 

In  Blewett  v.  Tregonning,  3  A.  &  E.  554  (E.  C.  L.  R.  vol.  30),  this 
Court  held  an  alleged  custom  to  be  bad  for  all  the  inhabitants  occupy- 
ing lands  in  a  district  to  enter  a  close,  and  take  therefrom  reasonable 
quantities  of  sand  which  had  drifted  thereupon,  for  the  purpose  of 
manuring  their  lands.  The  reason  was  that  the  drifted  sand  had  be- 
come part  of  the  close,  so  that  the  claim  was  to  take  a  profit  in  alieno 
solo :  but  the  water  to  be  taken  never  had  become  part  of  the  close ; 
nor  was  it  the  produce  of  the  close. 

The  plaintiff's  counsel  lastly  referred  to  the  recent  decision  of  the 
House  of  Lords  in  Dyce  v.  Lady  James  Hay,  1  Macqueen,  305,  in 
which  the  Lord  Chancellor  said  that  neither  by  the  law  of  Scotland  or     ^.^^  -, 
of  England  can  there  be  a  prescriptive  right,  in  the  nature  of  a  servi-    .      ' 
tudej)r  easement,  so  large  as  to  preclude  the  ordinary  uses  of  property 
by  the  owner  oFlhe  lands  affected.    But  no  such  consequence  will  fol-  (7  ,*'   /" 

low  from  the  customary  easement  claimed  in  the  present  case;  and  it  ;'  ' '' 
does  not  interfere  with  the  ordinary  uses  of  the  plaintiff's  close  so 
much  as  the  custom  would  which  was  held  to  be  valid  in  Tyson  v. 
Smith,  6  A.  &  E.  745  (E.  C.  L.  R.  vol.  ZZ),  9  A.  &  E.  406  (E.  C.  L.  R. 
vol.  36),  that,  at  fairs  holden  on  the  waste  of  a  manor,  every  liege  sub- 
ject exercising  the  trade  of  a  victualler  might  enter,  at  the  time  of 
the  fairs,  and  erect  a  booih,  and  continue  the  same  a  reasonable  time 
after  the  fairs,  for  the  more  convenient  carrying  on  his  calling. 

As  to  customary  rights  claimed  by  reason  of  inhabitancy,  the  dis- 
tinction has  always  been  between  a  mere  easement  and  a  profit  a  pren- 
dre^ A  custom  for  all  the  inhabitants  of  a  vill  to  dance  on  a  particular 
close  at  all  times  of  the  year,  at  their  free  will,  for  their  recreation,  has 
been  held  good,  this  being  a  mere  easement ;  Abbot  v.  Weekly,  1  Lev. 
176;  and  we  held,  last  Term,  that,  to  a  declaration  for  breaking  and 
entering  the  plaintiff's  close  and  taking  his  fish,  a  custom  pleaded  for 
all  the  inhabitants  of  the  parish  to  angle  and  catch  fish  in  the  locus  in 
quo  was  bad,  as  this  was  a  profit  a  prendre,  and  might  lead  to  the  de- 
struction of  the  subject-matter  to  which  the  alleged  custom  appli- 
ed.   *    *    * 

Judgment  for  the  defendants.^' 

2  3  The  privilege  of  piling  lumber  upon  the  land  of  another  cannot  be  ob- 
tained by  custom.  Talbott  v.  Grace,  30  Ind.  389,  95  Am.  Dec.  704  (1S08) ; 
Littlefield  v.  Maxwell,  31  Me.  134,  50  Am.  Dec.  653  (1S50);  Ackerman  v. 
Shelp,  8  N.  J.  Law,  125  (1825) ;  Post  v.  Pearsall,  22  Wend.  (N.  Y.)  425  (18391. 


180  EIGHTS  IN  THE  LAND  OF  ANOTHER  (Part  2 

CHAPTER  II 

EASEMENTS 


SECTION  1.— GENERAL  PRINCIPLES  OF  EASEMENTS 


ABBOT  V.  WEEKLY. 

(Court  of  lOng's  Bench,  1665.     1  Lev.  176.) 

Trespass  for  breaking  his  close;  the  defendant  prescribes,  that  all 
the  inhabitants  of  the  vill,  time  out  of  memory,  &c.  had  used  to  dance 
there  at  all  times  of  the  year  at  their  free  will,  for  their  recreation,  and 
so  justifies  to  dance  there:  issue  was  on  the  prescription,  and  a  ver- 
dict for  the  defendant,  and  to  save  his  costs  the  plaintiff  moved  in  ar- 
rest of  judgment,  that  this  prescription  to  dance  in  the  freehold  of  an- 
other, and  spoil  his  grass,  was  void,  especially  as  it  is  laid,  viz.  at  all 
times  of  the  year,  and  not  at  seasonable  times ;  and  that  'twas  also  ill 
laid  in  the  inhabitants,  who  although  they  may  prescribe  in  easements, 
as  6  Co.  Gateward's  case,  and  some  other  books  are,  yet  they  ought  to 
be  easements  of  necessity,  as  ways  to  a  church,  &c.  and  not  for  pleasure 
only,  as  this  case  is.  Secondly,  If  it  be  good,  it  ought  to  have  been  laid 
by  way  of  custom  in  the  town,  and  not  by  prescription  in  the  persons , 
and  a  case  was  cited,  where  'twas  so  adjudged  on  a  demurrer:  but 
by  the  Court,  this  is  a  good  custom,  and  it  is  necessary  for  inhabitants 
to  have  their  recreation.  And  as  to  the  second,  that  though  perhaps  it 
had  been  ill  on  a  demurrer,  yet  issue  being  taken  there  on  and  found 
for  the  defendant,  'tis  good ;  and  judgment  was  given  for  the  defend- 
ant.^ 

lAcc:  Knowles  v.  Dow,  22  N.  H.  387,  55  \va.  Dec.  163  (1851),  on  the 
ground  that  twenty  years'  use  .iustifies  the  finding  of  immemorial  use.  A 
custom  "for  all  persons  for  the  time  being,  being  in  a  certain  parish,"  to 
play  games  upon  a  specified  close,  was  held  bad  in  Pitch  v.  Bawling,  2  H. 
Bl.'393  (1795).    See,  also,  Mousney  v.  Ismay,  1  H.  &  C.  729  (1863). 


C       ^K-t,        <S<x.-^^^Cc-»^ 


Ch.  2)  EASEMENTS  181 


GRAHAM  V.  WALKER  et  ux. 

(Supreme  Court  of  Connecticut,  1905.     78  Conn.  130,  61  Atl.  98,  2  L.  K.  A. 
[N.  S.]  983,  112  Am.  St.  Rep.  93,  3  Ann.  Cas.  (>41.) 

Action  in  the  nature  of  trespass  qu.  cl.  fr.,  brought  by  appeal  from 
a  judgment  of  a  justice  of  the  peace  to  the  court  of  common  pleas  in 
New  London  county,  and  tried  by  jury  before  Noyes,  J. ;  verdict  and 
judgment  for  the  plaintiff  for  one  cent  damages,  and  appeal  by  the  de- 
fendants.   Error  and  new  trial  ordered. 

Baldwin,  J.    The  answer  contained  three  separate  defenses — a  gen-  ' 

eral  denial ;   an  entry  in  the  exercise  of  a  prescriptive  right  of  way  to  ^ 

and  from  Taftville,  appurtenant  to  a  close  of  the  defendants  situated 
in  a  quarter  of  the  town  of  Lisbon  known  as  "Blissville" ;  and  an  en- 
try in  the  exercise  of  a  right  of  way  to  and  from  Taftville,  belonging 
bymim^mOTialJocal^c^storn  to  all  the  inhabitants  of  BHssville.  It  was 
admitted  that  the  land  over  which  the  way  was  alleged  to  exist  was 
bounded  by  a  highway,  on  the  opposite  side  of  which,  at  a  distance  of 
about  half  a  mile,  the  defendants  owned  a  house  and  farm,  which  was 
the  close  to  which  they  claimed  the  way  to  be  appurtenant.  The  de- 
fendants introduced  evidence  which,  as  they  claimed,  proved  the  exist- 
ence of  each  of  the  rights  of  way  set  up  in  their  answer — the  former 
by  a  continuous,  uninterrupted,  and  adverse  user  for  more  than  15 
years  by  them  and  their  predecessors  in  title  in  connection  with  the 
occupation,  use,  and  enjoyment  of  their  close,  and  the  latter  by  a  like 
user  for  more  than  15  years  by  all  the  landowners  and  inhabitants  of 
BHssville  generally,  and  their  tenants  and  employes. 

With  respect  to  the  third  defense,  the  jury  were  instructed  that  if  a 
substantial  portion  of  the  inhabitants  of  BHssville  for  an  entire  period 
of  at  least  15  years  had  uninterruptedly,  continuously,  adversely,  and 
under  a  claim  of  right  in  behalf  of  all  the  inhabitants,  passed  over  the 
land  in  question,  to  and  from  Taftville,  with  the  knowledge  of  the  own- 
er of  the  land,  a  right  of  way  in  favor  of  all  the  inhabitants  was  there- 
by acquired,  founded  on  custom,  which  attached  to  every  one  who  for 
the  time  being  was  such  an  inhabitant,  while  he  continued  to  be  such ; 
that,  if  such  a  user  was  open,  notorious,  and  visible,  the  owner  of  the 
land  was  charged  with  notice  of  it;  that  a  user  would  be  continuous 
and  uninterrupted,  if  it  were  substantially  such,  although  it  were  more 
or  less  frequent,  according  to  the  nature  of  the  way  and  the  occurrence 
of  occasions  for  traveling  over  it ;  and  that  certain  testimony  which 
had  been  introduced  by  the  plaintiff  as  to  the  existence  of  other  paths 
and  their  use  by  the  inhabitants  in  going  to  and  from  Taftville  tend- 
ed in  a  measure  to  show  that  their  use  of  the  way  claimed  was  not  con- 
tinuous, uninterrupted,  and  customary. 

These  instructions  are  made  a  ground  of  appeal  by  the  defendants. 
They  were  too  favorable  to  the  defense.  A  right  of  way  by  custom  in 
favor  of  the  inhabitants  of  a  particular  locality  might  be  set  up  by  the 


IJl^^  .^^-y^-m\ 


'A 


182  RIGHTS  IN  THE  LAND  OF  ANOTHER  (Part  2 

common  law  of  England.  It  could  be  proved  by  immemorial  usage. 
From  such  proof  a  presumption  was  deemed  to  arise  that  the  usage  was 
founded  on  a  legal  right.  This  right  was  not  assumed  to  arise  from 
a  grant  by  an  owner  of  land  of  an  easement  in  it.  No  grant  of  that 
nature  can  subject  the  tenement  of  the  grantor  to  an  easement  which 
will  outlast  the  life  of  the  grantee,  unless  it  be  made  in  such  a  way  as 
to  become  appurtenant  to  some  other  tenement.  A  right  of  way  by 
custom  appertains  to  a  certain  district  or  territory,  but  not  to  any  par- 
ticular tenement  forming  'part  of  that  territory.  Nor  is  it  confined  to 
owners  of  land  within  that  territory.'  It  belongs  to  the  inhabitants  of 
that  territory,  whether  landowners  or  not.  To  a  fluctuating  body  of 
that  kind  no  estate  in  lands  can  be  granted.  If,  therefore,  an  easement 
be  claimed  to  exist  in  their  favor,  a  title  cannot  be  made  out  by  pre- 
scription, on  the  theory  of  a  lost  grant.  It  must  have  come,  if  at  all, 
from  some  public  act  of  a  governmental  nature. 

The  theory  of  English  law  was  that,  if  there  had  been  a  usage  from 
time  immemorial  (that  is,  so  far  as  could  be  ascertained,  from  the 
coronation  of  Richard  I),  affecting  the  use  of  real  estate  by  those  not 
able  to  show  any  paper  title  to  warrant  it,  it  might  fairly  be  presumed 
that  it  arose  under  an  act  of  Parliament  or  other  public  act  of  govern- 
ing power,  the  best  evidence  of  which  had  perished.  A  charter  from 
some  feudal  lord  or  ecclesiastical  corporation  might  be  such  an  act. 
Of  such  charters  there  were  no  public  records.  That  the  accidental  de- 
struction of  the  parchment  on  which  one  was  written  should  annul  the 
privileges  which  it  gave  would  be  plainly  unjust. 

The  political  and  legal  institutions  of  Connecticut  have  from  the 
first  differed  in  essential  particulars  from  those  of  England.  Feudal- 
ism never  existed  here.  There  were  no  manors  or  memorial  rights.  A 
recording  system  was  early  set  up,  and  has  been  consistently  main- 
tained, calculated  to  put  on  paper,  for  perpetual  preservation  and  pub- 
lic knowledge,  the  sources  of  all  titles  to  or  incumbrances  affecting  real 
estate.  Nor  have  we  all  the  political  subdivisions  of  lands  which  are 
found  in  England.  An  easement  by  custom  may  exist  there  in  favor 
of  the  inhabitants  of  a  city,  county,  town,  hamlet,  burgh,  vill,  manor, 
honor,  or  hundred.  Co.  Litt.  110b,  113b,  115b.  Most  of  these  terms 
denote  forms  of  communities  that  are  unknown  in  this  state.  Under 
our  statute  of  limitations,  also,  rights  of  way  may  be  established  by  a 
shorter  user  than  that  required  by  the  English  law.  Coe  .v,  Wolcott- 
ville  Mfg.  Co.,  35  Conn.  175;  Gen.  St.  1902,  §  1073. 

During  the  greater  part  of  the  colonial  era  the  common  law  of  Eng- 
land was  not  deemed  to  form  a  part  of  the  jurisprudence  of  Connecti- 
cut, except  so  far  as  any  part  of  it  might  have  been  accepted  and  intro- 
duced by  her  own  authority.  Stat.  (Ed.  1769)  1 ;  Swift's  System,  I, 
44.  Later  the  doctrine  received  the  sanction  of  this  court  that  it  was 
brought  here  by  the  first  settlers,  and  became  the  common  law  of  Con- 
necticut so  far  as  it  was  not  unadapted  to  the  local  circumstances  of 
\his  country.    Card  v.  Grinman,  5  Conn.164,  168.    This  court  has  never 


Ch.  2)  EASEMENTS  183 

affirmed  the  recognition  by  our  law  of  personal  rights  of  way  or  other 
easements  resting  on  local  custom.  In  view  of  all  the  considerations 
named,  we  are  of  opinion  that  such  rules  of  the  English  common  law 
as  gave  them  sanction  were  unadapted  to  the  conditions  of  political 
society  existing  here,  and  have  never  been  in  force  in  Connecticut.^ 

It  follows  that  the  trial  court  erred  in  directing  the  jury  to  disregard 
the  second  defense.  They  were  told  in  the  first  place  to  disregard  it 
because  the  evidence  of  user  introduced  in  its  support  was  equally  rel- 
evant to  support  the  third  defense,  and  if  the  defendants,  as  inhabitants 
of  Blissville,  had  a  personal  right  of  way  by  local  custom,  their  user, 
being  consistent  with  that,  could  not  be  claimed  to  indicate  the  asser- 
tion and  enjoyment  of  a  way  by  prescription  appurtenant  to  their  par- 
ticular close.  See  Blewett  v.  Tregonning,  3  Adolphus  &  Ellis,  554. 
There  being  no  such  thing  in  Connecticut  as  a  personal  right  of  way 
established  by  custom,  the  evidence  in  question  could  only  be  pertinent 
to  the  second  defense,  and,  if  sufficient  to  support  that,  the  defendants 
would  have  been  entitled  to  a  verdict.  The  defendants  had  themselves 
used  the  way  in  question  only  since  they  purchased  their  close,  seven 
years  before.  To  make  out  a  prescriptive  right,  it  was  therefore  nec- 
essary to  tack  the  user  by  their  predecessors  in  title. 

The  trial  court  further  instructed  the  jury  particularly  with  regard 
to  the  second  defense,  that  there  had  been  no  evidence  that  the  use  of 
the  way  by  the  defendants  or  their  predecessors  in  title  had  any  con- 
nection with  the  defendants'  land,  nor  any  direct  relation  to  its  use  and 
enjbymeiif,  since  it  differed  in  no  respect  from  the  use  of  the  way  by 
their  neighbors,  and  therefore  that  no  way  appurtenant  to  their  close 
had  been  made  out.  In  this  there  was  error.  An  easement  may  be  ap- 
purtenant to  land  although  the  servient  tenement  is  separated  by  other 
lands  from  the  dominant  tenement.  *  *  *  A  right  to  convey  water 
from  a  distant  source  of  supply  may  be  appurtenant  to  a  tenement  sep- 
arated from  that  on  which  such  source  of  supply  is  situated  by  several 
intervening  parcels  of  land,  each  belonging  to  a  different  proprietor. 
Cady  V.  Springsville  Waterworks  Co.,  134  N.  Y.  118,  31  N.  E.  245. 
In  like  manner,  a  way  from  one  close  to  and  through  another  is  none 
the  less  appurtenant  to  the  former  if  it  run  over  the  intervening  lands 
of  numerous  proprietors.  Guthrie  v.  Canadian  Pacific  Railway  Co., 
27  Ont.  App.  64,  69 ;  Horner  v.  Keene,  177  111.  390,  52  N.  E.  492.  See 
Fisk  v.  Ley,  76  Conn.  295,  56  Atl.  559. 

No  reason  is  apparent  why  the  same  principles  should  not  govern 
when  a  way  is  prescribed  for  as  an  appurtenance,  which  commences 
at  a  highway.  In  an  early  English  case  the  plaintiff  declared  on  a  way 
to  his  close  in  D  "in,  by,  or  through  a  certain  way  in  Sale,"  and  in  over- 
ruling a  motion  in  arrest  of  judgment  the  court  held  that  assuming 
the  term  "way,"  as  thus  used,  to  mean  highway,  while  the  plaintiff  was 

2 Ace:  Ackerman  v.  Shelp,  8  N.  J.  Law,  125  (1825).  See  Coolidge  v. 
Learned,  S  Pick.   (Mass.)  504   (1829). 


184  RIGHTS   IN  THE   LAND   OF   ANOTHER  ^  (Part  2 

in  the  exercise  of  a  public  right  when  on  the  highway  he  might  pre- 
scribe for  a  way  over  adjoining  ground  reached  from  and  by  means 
of  the  highway.  Banning's  Case,  Noy,  9.  This  is  cited  by  Comyn  as 
authority  for  the  position  that  a  private  way  may  exist  to  the  close  of 
another,  through  or  across  the  highway.  Com.  Dig.,  Ill,  37  "Chemin," 
D.  So  it  has  been  held  that  a  way  may  be  appurtenant  to  a  close  though 
separated  from  it  by  a  navigable  river.  Case  of  Private  Road,  1  Ash- 
mead,  417,  421.  That  a  way  cannot  be  appurtenant  to  a  close  at  which 
it  neither  begins  nor  ends  has  been  often  asserted  by  text-writers,  and 
is  not  without  countenance  from  judicial  decision.  Washburn  on  Ease- 
ments, *161 ;  23  Am.  &  Eng.  Encyclop.  of  Law,  6,  "Private  Ways"; 
Whaley  v.  Stevens,  21  S.  C.  221 ;  Id.,  27  S.  C.  549,  558,  559,  4  S.  E. 
145. 

The  better  reason  stems  to  us  to  lead  to  a  contrary  conclusion,  and 
to  be  supported  by  the  rules  of  common  law.  An  appurtenant  way  or- 
dinarily does  touch  the  close  to  and  from  which  it  leads,  and  that 
it  should  is  commonly  essential  to  its  enjoyment;  but  it  is  not  always 
thus  essential,  and,  when  not,  the  dominant  may  be  separated  even 
at  a  long  distance  from  the  servient  tenement.^  The  use,  however,  of 
any  easement,  which  can  be  claimed  as  an  appurtenance  by  prescription, 
must  be  so  related  to  the  use  of  the  dominant  tenement  that  its  partic- 
ular connection  with  the  beneficial  enjoyment  of  that  tenement  is  not 
merely  conjectural,  but  direct  and  apparent.  A  claim  to  a  way  by  pre- 
scription appurtenant  to  a  particular  close  being  founded  on  the  pre- 
sumption of  a  lost  grant,  none  can  be  so  gained  unless  the  prescriptive 
use  was  such  as  to  make  it  reasonable  to  presume  that  the  owner  of  the 
land  over  which  the  way  was  used  knew  that  such  use  was  in  connec- 
tion with  and  furtherance  of  the  enjoyment  of  such  close.  He  might 
be  willing  to  concede  a  claim  to  a  personal  right  of  way  which  would 
cease  with  the  life  of  the  claimant,  when  he  would  dispute  a  claim  to 
a  right  of  way  appurtenant  .to  another's  close,  which  would  endure 
forever. 

The  fact  that  the  respective  closes  of  the  parties  were  half  a  mile 
apart,  and  that  the  way  was  only  accessible  by  the  highway  on  which 
each  of  these  closes  abutted,  did  not  conclusively  bar  a  claim  that  the 
way  was  an  appurtenance  to  that  of  the  defendants.  The  testimony 
which  they  had  introduced  tended  to  show  a  long,  adverse,  and  contin- 

8  In  addition  to  the  cases  cited  in  the  opinion,  see  Thorpe  v.  Brumflt,  L. 
R.  8  Ch.  App.  650  (1873);  Louisville  &  N.  R.  R.  v.  Koelle,  104  111.  455  (1882); 
Winston  v.  Johnson,  42  Minn.  398,  45  N.  W.  958  (1890). 

Compare  Garrison  v.  Rudd,  19  111.  558  (1858). 

A.  owned  a  farm  upon  which  was  a  spring.  He  convej'ed  a  part  of  the 
farm  to  his  son  B.  in  fee,  together  with  the  right  "to  take  water  from  my 
spring  for  his  family  use" ;  he  later  conveyed  another  portion  to  his  daughter 
C.  in  fee,  together  with  "a  privilege  to  take  water  from  the  spring  on  my 
farm  as  occasion  may  require."  Held,  C.'s  easement  was  appurtenant  to  the 
land  conveyed  to  her.  Chase  v.  Cram,  39  R.  I.  83,  97  Atl.  481,  L.  R.  A. 
1918F,  444  (1916).  Compare  Coatsworth  v.  Hayward,  78  Misc.  Rep.  194,  139 
N.  Y.  Supp.  331  (1912). 


Ch.  2)  EASEMENTS  185 

uous  user  by  the  successive  owners  of  their  close,  in  connection  with 
their  use,  occupation,  and  enjoyment  of  it  in  going  thence  to  Taftville 
and  back.  Such  a  user,  if  proved  to  the  satisfaction  of  the  jury,  might 
sufficiently  establish  a  direct  connection  between  the  use  of  the  close 
and  the  use  of  the  way  to  bring  it  within  the  definition  of  a  way  ap- 
purtenant. That  some  or  all  of  their  neighbors  might  have  a  similar 
way,  appurtenant  to  their  closes,  was  immaterial.  Kent  v.  Waite,  10 
Pick.  (Mass.)  138. 

Other  reasons  of  appeal  require  no  discussion,  as  the  questions  pre- 
sented are  not  likely  to  recur  on  another  trial. 

There  is  error,  and  a  new  trial  is  ordered.  The  other  Judges  con- 
curred. 


ACKROYD  V.  SMITH  et  al. 
(Court  of  Common  Pleas,  1850.     10  C.  B.  164.) 

[Trespass  qu.  cl.  f r.  for  breaking  and  entering  a  certain  close  of  the 
plaintiff,  which  consisted  of  a  road  or  lane  running  between  the  Brad- 
ford and  Thornton  turnpike  road  on  one  side  and  a  certain  other  road 
known  as  Legram's  Lane  on  the  other  side.  The  plaintiff  was  the 
owner  subject  to  a  mortgage  to  one  Lister,  and  in  possession  of  the 
locus  in  quo.  He  had  also  owned,  subject  to  the  same  mortgage,  cer- 
tain other  adjacent  parcels.  He  and  the  mortgagee  by  deed  had  con- 
veyed these  other  parcels  in  fee  to  one  John  Smith  "together  with  all 
ways,  paths,  passages,  particularly  the  right  and  privilege  to  and  for 
the  owners  and  occupiers,  for  the  time  being,  of  the  said  close,  pieces, 
or  parcels  of  land,  or  any  of  them,  and  all  persons  having  occasion  to 
resort  thereto,  of  passing  and  re-passing,  with  or  without  horses,  cat- 
tle, carts,  and  carriages,  for  all  purposes,  in,  over,  along,  and  through 
a  certain  road  running  between  the  Bradford  !\nd  Thornton  turnpike 
road  and  Legram's  Lane." 

The  defendants  in  their  plea  set  out  the  above-mentioned  convey- 
ance and  deduced  a  title  in  themselves  by  mesne  conveyances  of  the 
above  granted  lands  "and  appurtenances,"  and  alleged  that  thus  being 
the  owners  of  the  parcels  conveyed  and  having  occs-sion  for  tlieir  own 
purposes  to  use  the  right  so  granted  they  had  passed  over  the  road 
over  which  the  way  had  been  granted,  and  so  justifief'  the  trespasses 
complained  of. 

The  plaintiff  demurred,  assigning  for  causes  that  the  plea  did  not 
show  that  the  trespasses  justified  were  committed  in  going  to  or  from 
the  premises  conveyed,  or  that  they  were  in  any  manner  connected  with 
the  enjoyment  of  these  premises.] 

CrEswell,  J.*  *  *  *  In  support  of  the  demurrer,  it  was  con- 
tended, first,  that  the  road  granted  was  only  for  purposes  connected 

4  The  statement  of  facts  is  abridged  and  part  of  tlie  opinion  of  (Jress-veU 
J.,  and  the  opinion  of  Wilde,  C.  J.,  are  omitted. 


186  RIGHTS  IN  THE  LAND   OF  ANOTHER  (Part  2 

with  the  occupation  of  the  land  conveyed,  and  therefore  was  not  suffi- 
cient to  support  tlie  justification  pleaded,  and,  secondly,  that,  if  the  grant 
was  more  ample,  and  gave  to  the  grantee  a  right  of  using  the  road  for 
all  purposes,  although  they  might  not  be  in  any  way  connected  with 
the  enjoyment  of  the  land,  it  would  not  pass  to  an  assignee  of  the  land, 
and  therefore  the  defendants  could  not  claim  it  under  a  conveyance  of 
the  land,  with  the  appurtenances.  On  the  other  hand,  it  was  contended 
that  the  right  created  by  deed  might  be  assigned  by  deed,  together  with 
the  land,  and  was  large  enough  to  maintain  the  justification  pleaded. 

Upon  consideration,  we  have  come  to  the  Conclusion  that  the  plain- 
tiff is  entitled  to  our  judgment  on  the  demurrer. 

If  the  right  conferred  by  the  deed  set  out,  was  only  to  use  the  road 
in  question  for  purposes  connected  with  the  occupation  and  enjoyment 
of  the  land  conveyed,  it  does  not  justify  the  acts  confessed  by  the  plea. 
But,  if  the  grant  was  more  ample,  and  extended  to  using  the  road  for 
purposes  unconnected  with  the  enjoyment  of  the  land — and,  this,  we 
think,,  is  the  true  construction  of  it^t  becomes  necessary  to  decide 
whether  the  assignee  of  the  land  and  appurtenances  would  be  entitled 
to  it.  In  the  case  of  Keppell  v.  Bailey,  2  Mylne  &  K.  517,  the  subject 
of  covenants  running  with  the-  land,  was  fully  considered  by  Lord 
Chancellor  Brougham;  and  the  leading  cases  on  it  are  collected  in  his 
judgment.  He  there  says:  °  "The  covenant  (that  is,  such  as  will  run 
with  the  land)  must  be  of  such  a  nature  as  'to  inhere  in  the  land,'  to 
use  the  language  of  some  cases ;  or,  'it  must  concern  the  demised  prem- 
ises, and  the  mode  of  occupying  them,'  as  it  is  laid  down  in  others : 
'it  must  be  quod  ammodo  annexed  and  appurtenant  to  them,'  as  one  au- 
thority has  it ;  or,  as  another  says,  'it  must  both  concern  the  thing  de- 
mised, and  tend  to  support  it,  and  support  the  reversioner's  estate.'  " 
Now,  the  privilege  or  right  in  question  does  not  inhere  in  the  land,  does 
not  concern  the  premises  conveyed,  or  the  mode  of  occupying  them; 
it  is  not  appurtenant  to  them.  A  covenant,  therefore,  that  such  a  right 
should  be  enjoyed,  would  not  run  with  the  land.  Upon  the  same  prin- 
ciple, it  appears  to  us  that  such  a  right,  unconnected  with  the  enjoy- 
ment or  occupation  of  the  land,  cannot  be  annexed  as  an  incident  to  it : 
nor  can  a  way  appendant  to  a  house  or  land  be  granted  away,  or  made 
in  gross ;  for,  no  one  can  have  such  a  way  but  he  who  has  the  land 
to  which  it  is  appendant:  Bro.  Abr.  Graunt,  pi.  130."  21_.?:->YSy_be 
granted  in  gross,  it  is  personal  only,  and  cannot  be  assigned.  So,  coiy- 
mon  in  gross  sans  nombre  may  be  granted,  but  cannot  be  granted  over 
— per  Treby,  C.  J.,  in  Weekly  v.  Wildman,  1  Ld.  Raym.  407.  It  is 
not  in  the  power  of  a  vendor  to  create  any  rights  not  connected  with 

0  2  Mylne  &  K.  537. 

6  Citing  5  H,  7,  7  (M.  5  H.  7,  fo.  7,  pl.  15):  "Note,  tbat  it  was  said  by 
Fairfax  (Justice  of  C.  P.)  for  law,  tbat,  if  one  has  a  way  appendant  to  his 
manor,  or  to  his  bouse  by  prescription,  that  way  cannot  be  made  in  gross ; 
because  no  man  can  tal^e  profit  of  tbat  way,  except  he  have  the  manor  or  the 
house  to  which  the  way  is  appendant." 


Ch.  2)  EASEMENTS  187 

the  use  or  en|oyment  of  the  land,  and  annex  them  to  it:  nor  can  the 
ovyner  of  land  render  it  subject  to  a  new  species  of  burthen,  so  as  to 
bind  it  in  the  hands  of  an  assignee.  "Incidents  of  a  novel  kind  cannot 
be  devised,  and  attached  to  property,  at  the  fancy  or  caprice  of  an}' 
owner."    Per  Lord  Brougham,  C,  in  Keppel  v.  Bailey. 

This  principle  is  sufficient  to  dispose  of  the  present  case..  It  would 
be  a  novel  incident  annexed  to  land,  that  the  owner  and  occupier  should, 
for  purposes  wholly  unconnected  with  that  land,  and  merely  because  he 
is  owner  and  occupier,  have  a  right  of  road  over  other  land.  And  it 
seems  to  us  that  a  grant  of  such  a  privilege  or  easement  can  no  more 
be  annexed,  so  as  to  pass  with  the  land,  than  a  covenant  for  any  col- 
lateral  matter. 

The  defendants  cannot,  therefore,  as  assigns,  avail  themselves  of  the 
grant  to  John  Smith ;  and  our  judgment  must  be  for  the  plaintiff. 

Judgment  for  the  plaintiff. 


BOATMAN  v.  LASLEY. 

(Supreme  Court  of  Ohio,  1873.    23  Oliio  St,  614.) 

Motion  for  leave  to  file  a  petition  in  error  to  the  District  Court  of 
Gallia  county. 

The  original  action  was  brought  in  the  Court  of  Common  Pleas  of 
Gallia  county  by  Matthew  Lasley  against  Isaac  Boatman  and  wife,  to 
foreclose  a  mortgage  executed  by  the  defendants  to  secure  the  payment 
of  purchase  money  of  the  lands  mortgaged.  The  mortgaged  premises 
had  been  conveyed  by  the  plaintiff  to  defendant,  Isaac  Boatman,  on 
the  15th  of  March,  1870,  by  a  deed  containing  a  covenant  that  the  de- 
mised premises  were  free  and  clear  of  all  incumbrances.  The  defend- 
ant aniwered,  and  by  way  of  counterclaim,  alleged  damages  resulting 
from  a  breach  of  this  covenant  against  incumbrances.  The  alleged  in- 
cumbrance consisted  of  a  private  right  of  way  over  the  warranted,prem- 
ises,  outstanding  at  the  date  of  the  conveyance  in  one  Alexander  Logue. 
This  right  of  way  had  been  granted  by  deed,  on  the  7th  day  of  June, 
1862,  by  the  warrantor,  to  "Logue,  his  heirs  and  assigns,  and  the  ten- 
ants or  occupiers  for  the  time  being  of  the  lands  now  (then)  owned  and 
occupied  by  the  said  Alexander  Logue,  in  section  15,  town  5,  of  range 
14,  in  the  Ohio  Company's  Purchase.  It  is  also  alleged  in  the  answer, 
that,  before  the  15th  of  March,  1870  (the  date  of  the  covenant),  said 
Logue  had  conveyed  his  lands  in  section  15,  town  5,  of  range  14,  in 
the  Ohio  Company  Purchase,  to  one  George  W.  Roush.  It  is  not  al- 
leged, however,  that  Logue,  at  the  time  the  right  of  way  over  the  war- 
ranted premises  was  granted  to  him  by  the  plaintiff,  was  the  owner  or 
occupier  of  any  land  in  said  section  15,  or  elsewhere,  nor  is  it  alleged 
that  the  right  of  way  complained  of  became  appendant  or  appurtenant 
to  anv  land  whatever,  or  that  said  Roush  had  any  interest  in  said  right 


188  RIGHTS   IN  THE  LAND   OF   ANOTHER  (Part  2 

The  plaintiff,  in  his  reply,  denied  that  Roush  had  an  easement  or  right 
of  way  on  the  premises  granted  to  the  defendant,  and  also  denied  that 
the  defendant  had  sustained  any  damage  by  reason  of  the  right  of  way 
complained  of. 

The  cause  was  submitted  to  a  jury,  who  assessed  the  defendant's 
damages,  by  reason  of  the  existence  of  the  right  of  way,  at  $100,  which 
sum  was  deducted  from  the  mortgage  debt,  and  decree  entered  in  favor 
of  the  plaintiff  for  tlie  balance. 

During  the  trial  the  defendant  took  a  bill  of  exceptions,  from  which 
it  appears  that  the  defendants  offered  in  evidence  the  deed  for  the  right 
of  way  from  Lasley  to  Logue,  a  copy  of  which  is  attached,  marked 
"A."  They  also  gave  evidence  tending  to  prove  that  said  right  of  way 
was  still  in  the  occupation  of  said  Alexander  Logue,  and  those  claim- 
ing under  him,  who  were  then  occupying  the  lands  to  which  said  right 
of  way  was  intended  to  be  made  appendant.  "And  the  plaintiff,  to 
maintain  the  issue  on  his  part,  gave  evidence  tending  to  show  at  the 
time  said  deed  of  right  of  way  was  executed  by  him  to  Alexander 
Logue,  the  said  Logue  did  not  own  the  land  to  which  the  right  of  way 
was  intended  to  be  appendant,  and  that  said  Logue  had,  prior  to  the 
execution  of  the  deed  of  right  of  way,  conveyed  said  lands  to  one 
George  W.  Roush." 

The  evidence  being  closed,  the  court  charged  the  jury  as  follows: 
"If  the  jury  shall  find  from  the  evidence  that  at  the  date  of  the  deed 
made  by  Lasley  to  Logue,  marked  *A,'  the  said  Alexander  Logue,  gran- 
tee therein,  was  not  the  owner  in  fee  or  otherwise  of  some  real  estate 
adjoining  the  farm  through  which  said  right  of  way  is  granted,  or 
situate  in  the  neighborhood,  so  that  said  right  of  way  may  become  ap- 
purtenant to  the  same,  then  the  said  deed  conveys  a  right  of  way  per- 
sonal to  himself  alone — one  which  can  not  descend  to  his  heirs,  and 
one  which  he  can  not  assign  or  release  to  another  person,  excep!  such 
other  person  be  the  owner  of  the  farm  through  which  said  way  was 
granted." 

The  judgment  of  the  Common  Pleas  was  afterward,  on  petition  in 
error,  affirmed  by  the  District  Court  of  Gallia  county. 

Leave  is  now  asked  to  file  a  petition  in  error  in  this  court  to  reverse 
the  judgment  below,  for  alleged  error  in  the  charge  to  the  jury  as 
above  set  forth.- 

McIlvaine,  J.  Is  a  private  right  of  way  over  the  lands  of  another, 
in  gross,  such  an  interest  or  estate  in  land,  as  may  be  cast  by  descent, 
or  may  be  assigned  by  the  grantee  to  one  who  has  no  interest  in  the 
land?  These  are  the  only  questions  in  this  case.  If  such  a  right  be 
inheritable  or  assignable,  the  Court  of  Common  Pleas  erred  in  its 
charge ;   otherwise  there  is  no  error  in  the  record. 

The  terms  of  the  deed  from  Lasley  to  Logue  plainly  import  an  in- 
tention to  make  the  right  of  way  therein  granted  appendant  and  ap- 
purtenant to  other  lands,  but  the  record  does  not  disclose  either  the 
facts  or  the  law  given  to  the  jury,  whereby  it  could  determine  whether 


Ch.  2)  EASEMENTS  189 

or  not  tliat  intention  was  accomplished.  It  simply  shows  that  the  jury 
was  instructed  that  if  tlie  right  of  way  granted  did  not  and  could  not, 
under  the  circumstances,  become  appurtenant  to  lands  other  than  those 
over  which  it  was  granted,  then  it  was  a  mere  personal  right  in  the 
grantee,  which  could  not  be  inherited  from  him,  or  transferred  by  him 
to  a  stranger. 

The  correctness  of  this  instruction  does  not  depend  upon  a  construc- 
tion of  the  deed  by  which  it  was  granted,  for  the  terms  of  the  grant 
are  "to  Alexander  Logue,  his  heirs  and  assigns."  The  real  question  is, 
whether  or  not  a  private  right  of  way  in  gross  is,  in  law,  capable  of 
being  transferred  or  transmitted. 

It  is  strongly  insisted  upon,  in  argument,  that  a  right  of  way  in  gross 
may  be  conveyed  to  the  grantee  "and  to  his  heirs  and  assigns  forever," 
because  an  owner  in  fee  may  carve  out  of  his  estate  any  interest  less 
than  the  whole  and  dispose  of  the  less  estate  absolutely;  and  this  be- 
cause the  power  to  dispose  of  the  whole  estate  includes  a  power  to  dis- 
pose of  any  part  of  it. 

This  argument  assumes  the  affirmative  of  the  very  question  in  con- 
troversy, to  wit,  that  such  a  right  of  way  is  an  interest  or  estate  in 
the  land. 

A  mere  naked  right  to  pass  and  repass  over  the  land  of  another,  a 
use  which  excludes  all  participation  in  the  profits  of  the  land,  is  not, 
in  any  proper  sense,  an  interest  or  estate  in  the  land  itself.  Such  a 
right  is  in  its  nature  personal ;  it  attaches  itself  to  the  person  of  him 
to  whom  it  is  granted,  and  must  die  with  the  person. 

If  such  right  be  an  inheritable  estate,  how  will  the  heirs  take?  In 
severalty,  in  joint  tenancy,  coparcenary,  or  as  tenants  in  common?  If 
not  in  severalty,  how  can  their  interests  be  severed? 

If  it  be  assignable,  what  limit  can  be  placed  on  the  power  of  aliena- 
tion? To  whom  and  to  how  many  may  it  be  transferred?  Why  not 
to  the  public  at  large,  and  thus  convert  into  a  public  way  that  which 
was  intended  to  be  a  private  and  exclusive  way  only  ? 

Where  the  way  is  appendant  or  appurtenant  to  other  lands,  very  dif- 
ferent considerations  arise.  There  the  right  attaches  to  the  lands  to 
which  the  way  is  appurtenant,  because  it  is  granted  for  the  convenience 
of  their  occupation  without  respect  to  the  ownership  or  number  of  oc- 
cupants. In  such  case  the  right  of  way  passes  with  the  dominant  es- 
tate as  an  incident  thereto.  A  right  of  way  appendant  cannot  be  con- 
verted into  a  way  in  ^ross,  nor  can  a  way  in  gross  be  turned  into  a 
way  appendant. 

A  very  marked  distinction  also  exists  between  a  way  in  gross  and 
an  easement  of  profit  a  prendre ;  such  as  the  right  to  enter  upon  the 
lands  of  anotlier,  and  remove  gravel  or  other  materials  therefrom. 
The  latter  so  far  partakes  of  the  nature  of  an  estate  in  the  land  itself, 
as  to  be  treated  as. an  inheritable  and  assignable  interest.  Post  v.  Pear- 
sail,  22  Wend.  (N.  Y.)  432. 


390  EIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

Both  upon  principle  and  authority,  we  think  there  was  no  error  in 
the  charge  of  the  court  below.  Mr.  Washburn  in  his  work  on  Ease- 
ments, page  8,  par.  11,  states  the  law  upon  this  subject  as  follows:  "A 
man  may  have  a  way  in  gross  over  another's  land,  but  it  must,  from  its 
nature,  be  a  personal  right  not  assignable  or  inheritable ;  nor  can  it  be 
made  so  by  any  terms  in  the  grant,  any  more  than  a  collateral  and  in- 
dependent contract  can  be  made  to  run  with  the  land."  See  also  Ack- 
royd  V.  Smith,  10  C.  B.  164;  Garrison  v.  Budd,  19  111.  558;  Post  v. 
Pearsall,  22  Wend.  (N.  Y.)  432;  Woolrych  on  Ways,  20;  2  Black 
Com.  35;   3  Kent's  Com.  420,  512. 

Leave  refused.'^ 


STANDARD  OIL  CO.  v.  BUCHI  et  ux. 
(Court  of  Chancery  of  New  Jersey,  1907.     72  N.  J.  Eq.  492,  66  Atl.  427.) 

PiTNSY,  Advisory  Master.*  The  object  of  the  bill  is  to  obtain  ju- 
dicial restraint  preventing  the  defendant  from  interfering  by  strong 
hand  and  serious  threats  of  violence  with  the  complainant's  work  in 
laying  across  the  lands  of  the  defendant  in  Bergen  county  a  line  of  pipe 
for  the  transportation  of  oil.     *     *     * 

The  complainant  claims  the  right  in  question  by  virtue  of  a  deed 
dated  the  30th  day  of  October,  1882,  and  duly  recorded  on  the  6th  day 
of  December,  1882,  in  the  clerk's  office  of  Bergen  county,  where  the 
lands  lie,  between  James  H.  Kingsland,  predecessor  in  title  of  the  de- 
fendant and  then  the  owner  of  the  lands  in  question,  and  one  John  B. 
Barbour,  under  whom  the  complainant  claims.  That  deed,  or  so  much 
of  it  as  is  necessary  for  present  purposes,  is  as  follows :  "Witnesseth : 
That  for  and  in  consideration  of  five  dollars  in  hand  paid,  the  receipt 
of  which  is  hereby  acknowledged  and  the  further  sum  of  twenty  dol- 
lars to  be  paid  before  any  pipe  is  laid,  the  party  of  the  first  part,  his 
heirs  and  assigns,  hereby  grants  to  the  party  of  the  second  part,  his 
heirs  and  assigns,  the  right  of  way  to  lay  pipes  for  the  transportation 
of  petroleum ;  and  operate  the  same  on,  over  and  through  his  lands 
in  said  County  of  Bergen,  in  said  State  of  New  Jersey,  described  in  a 
certain  deed  dated  Sept.  13th  1881,  and  recorded  in  the  County  Clerk's 
office  of  Bergen  County,  in  book  Z-10  page  542  of  deeds,  together 
with  all  the  rights  and  privileges  incident  and  necessary  to  the  enjoy- 
ment of  this  grant,  and  the  removal  of  said  pipes.  *  *  *  It  is  un- 
derstood and  agreed  between  the  parties  hereto  that  said  pipe  lines  are 
to  be  laid  within  ten  feet  of  the  southerly  lines  of  the  above  described 
property,  excepting  where  there  are  angles  in  said  property  lines  at 
which  points  such  deflections  shall  be  made  therefrom  as  the  surveyor 

7  Contra:     Shreve  v.  Mathis,  63  N.  J.  Eq.  170,  52  Atl.  234  (1902). 

See  Hall  v.  Armstrong,  53  Conn.  554,  4  Atl,  113  (1885);  Wilder  v.  Wheeler, 
60  N.  H.  351   (1880). 

8  Part  of  the  opinion  is  omitted. 


Ch.  2)  ,  EASEMENTS  191 

of  the  party  of  the  second  part  may  decide  to  be  necessary.  Witness 
our  hands  and  seals  the  day  and  year  first  above  written.  [Signed] 
Jas.  H.  Kingsland.     [Seal.]     J.  B.  Barbour.     [Seal.]" 

The  bill  alleges,  and  in  this  respect  is  supported  by  the  affidavits,  or 
at  least  is  not  disputed  on  this  motion,  that  the  grantee,  Barbour,  was 
a  mere  agent  or  trustee  for  procuring  the  right  of  way  (and  land  for 
pumping  stations)  for  a  continuous  underground  series  of  pipes  con- 
ducting petroleum  from  Pennsylvania  and  other  oil-bearing  regions  to 
tide  water.  That  in  1880  he  purchased  certain  land  in  Bergen  county 
from  a  Mrs.  Zabriskie,  and  an  adjoining  tract  from  one  Knowles,  for 
the  purpose  of  a  pumping  station,  which  he  immediately  conveyed  to 
the  Standard  Oil  Company,  and  that  the  deed  above  mentioned  from 
Kingsland  was  also  taken  by  said  Barbour  as  a  part  of  the  right  of 
way  for  a  great  pipe  line  system  for  conducting  oil  from  the  oil  regions 
to  tide  water,  and  shortly  afterwards  was  assigned  and  conveyed  to  the 
complainant  and  a  continuous  line  of  oil-bearing  pipe  was  laid  over  it, 
including  the  Kingsland  strip,  and  pumping  stations  erected  and  the 
pipe  line  put  in  use  for  tlie  purpose  of  conveying  oil,  and  has  been  in 
use  ever  since ;  that  later  on,  in  1894,  a  second  pipe  line  was  laid  along- 
side the  first  along  the  entire  length  of  the  Kingsland  property  and  put 
in  immediate  use,  and  that  the  object  of  the  present  proposed  interfer- 
ence with  the  soil  of  the  defendant  is  to  lay  a  third  pipe  line  over  the 
whole  right  of  way  close  beside  the  first. 

The  justification  set  up  by  the  defendant  amounts  to  a  demurrer  to 
the  bill,  and  the  argument  in  its  support  may  be  briefly  stated  as  fol- 
lows :  That  the  grant  contained  in  the  Kingsland  deed  amounted  to  no 
more  than  the  grant  of  an  easement  without  the  naming  of  any  dom- 
inant tenement,  and  therefore  amounted  to  no  more  than  an  easement 
in  gross,  which  was  not  assignable,  and  hence  amounted  to  a  mere  li- 
cense, and  was  determinable  at  the  will  of  the  licensor;  that  the  license 
was  in  law  immediately  abandoned  by  the  assignment  thereof,  and  that 
it  was  also  formally  determined  by  a  notice  of  revocation  given  by  the 
defendant  Buchi  to  the  complainant,  dated  March  5,  1907,  and  annex- 
ed to  the  bill  of  complaint. 

The  first  inquiry  naturally  is :  what  is  the  true  character  of  the  grant 
in  question?  Is  it  properly  classified  either  as  a  mere  easement  or  as 
a  mere  revocable  license?  It  is  to  be  observed,  in  the  first  place,  that 
it  is  an  instrument  under  seal,  and  expresses  to  be  for  a  valuable  con- 
sideration presently  paid,  with  the  provision  for  the  ascertainment  of 
a  further  consideration  in  a  mode,  the  reasonableness  of  which  seems 
to  me  to  be  quite  apparent  and  which  has  not  been  attacked  in  the  argu- 
ment. In  the  next  place,  it  is  not  a  mere  promise  to  do  something  in 
the  future,  nor  is  it  a  mere  permission,  but  it  is  a  grant  in  prsesenti, 
and  it  is  not  a  mere  privilege  given  to  tlie  grantee  which  can  be  con- 
sidered as  merely  personal  to  him,  such  as  a  privilege  to  wander  over 
ground  with  or  without  the  privilege  of  hunting  or  fishing,  but  it  is 


193  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

made  to  the  grantee,  his  heirs  and  assigns.  Then  it  is  not  the  mere 
privilege  to  walk  or  pass  over  land  without  the  right  to  disturb  the  soil, 
as  is  a  right  of  way,  but  it  is  a  "right  to  lay  down  pipes  for  the  trans- 
portation of  petroleum  and  to  operate  the  same  over"  the  lands,  "to- 
gether with  all  the  right  and  privileges  incident  and  necessary  to  the 
enjoyment  of  the  grant  and  the  removal  of  the  pipes."  This  grants 
rights  in  the  soil  in  perpetuo. 

Now  just  here  the  defendant  attempts  to  meet  this  aspect  of  the  case 
by  setting  up  that  he  does  not  propose  to  dispute  or  disturb  what  has 
already  been  done  under  the  so-called  license,  or  to  interfere  with  the 
complainant  in  the  enjoyment  of  its  works  already  on  his  land,  but  he 
claims  the  right  to  prevent  any. further  exercise  of  the  rights  mentioned 
in  the  grant.  Nor  does  he  contend  that  the  right  to  lay  the  third  line 
of  pipes  is  not  included  in  the  terms  of  the  grant.  Nor  does  he  con- 
tend that  there  ,is  anything  inequitable  in  the  complainant's  standing 
before  the  court.  On  the  contrary,  hfe  puts  himself  on  the  bold,  bare 
ground  that,  because  there  was  no  dominant  tenement  mentioned  in 
the  grant  to  which  what  would  have  been  an  easement  was  appurtenant 
or  appendant,  the  easement  so  called  became  one  in  gross  and  not  as- 
signable, and  by  its  attempted  assignment  ceased  to  exist  in  law,  or  at 
least  degenerated  into  a  mere  license  revocable  so  far  as  not  acted  upon. 

Now,  is  it  possible  to  treat  the  document  in  question  as  having  no 
greater  force  than  that?  The  doctrine  contended  for,  if  logically  ap- 
plied, leads  to  this  result:  If  Mr.  Barbour  had  paid  Mr.  Kingsland 
$1,000  in  cash  for  this  grant,  and  had  tlie  next  day  assigned  it  to  the 
complainant,  it  would  have  been  possible  for  Kingsland  to  have  imme- 
diately destroyed  the  value  in  the  law  of  his  grant  by  a  formal  revoca- 
tion of  it,  and  the  complainant  would  have  had  no  relief  in  equity  by 
showing  that  Barbour  was  acting  merely  as  its  agent ;  for  it  is  not  con- 
tended by  the  defendant  that  the  Standard  Oil  Company  has  not  the 
capacity  in  law  of  holding  the  title  to  and  operating  a  pipe  line  such  as 
that  described  and  in  actual  use.  And  it  is  to  be  observed  that  the  ques- 
tion is  not  whether  in  the  then  present  condition  of  the  law  the  Stand- 
ard Oil  Company  had  the  right  to  acquire  by  condemnation  proceed- 
ings the  lands  and  rights  of  way  for  its  pipe  line  and  pumping  stations 
from  the  western  oil  fields  to  tide  water,  but  the  question  is  whether, 
having  first  purchased  the  lands  and  rights  of  way  through  agents,  by 
means  of  divers  conveyances  which  did  not  disclose,  so  far  as  relates 
to  mere  rights  of  way,  any  termini  or  dominant  tenement,  it  could  have 
been  prevented  by  any  one  of  the  grantors  from  proceeding  to  lay  its 
pipe  across  the  grantor's  land,  or,  rather,  whether,  having  acquired  title 
in  that  manner,  by  grants  which  provided  in  effect  the  right  to  add  to 
its  pipe  line  from  time  to  time,  and  having  acted  upon  those  grants  so 
obtained,  and  having  built  a  great  trunk  line  and  being  in  possession 
and  use  thereof,  it  may  be  prevented  from  adding  thereto  on  the  ground 
here  taken.     *     *     * 


Ch.  2)  EASEMENTS  193 

The  idea  underlying  the  ordinary  easement  is  that  it  is  at  the  ex- 
pense of  one  tenement,  called  the  "servient"  tenement,  and  for  the 
benefit  especially  of  another  tenement,  called  the  ''dominant''  tenement. 
Clearly  the  right  granted  by  the  deed  in  this  case  was  not  of  that  char- 
acter, and  hence  it  must  be  construed  by  rules  not  applicable  to  those 
of  ordinary  easements.  There  was  in  this  case,  and  could  in  the  nature 
of  things  be,  no  dominant  tenement.  Nor  is  it,  in  its  essential  nature 
a  license,  nor  can  it  be  reduced  in  its  nature  in  that  respect.  It  by  its- 
terms  granted  a  permanent  right  to  lay  the  pipe,  to  maintain  the  same, 
and  to  remove  the  same.  It  gave  an  interest  in  the  land  quite  as  posi- 
tive and  as  permanent  as  that  in  which  a  deed  is  given  granting  the 
right  to  lay  a  line  of  water  pipes  or  to  erect  a  line  of  telephone  poles 
across  the  grantor's  land,  where  the  circumstances  indicate  that  the 
work  done  thereunder  was  to  be  permanent.  From  these  considera- 
tions, based  on  general  and  familiar  principles,  I  come  to  the  conclusion 
that  the  defendant's  position  is  untenable,  especially  when  urged  in  ? 
court  of  equity.^     *     *     * 

I  think  the  present  grant  is  something  more  than  an  easement,  al 
though  undoubtedly  it  includes  easements,  and  I  think  that  it  is  a  great 
deal  more  than  a  license,  in  that  it  gives  an  irrevocable  interest  in  the 
land  and  creates,  by  apt  words,  an  estate,  is  expressed  to  be  upon  a 
consideration,  and  is  sealed  by  the  seal  of  the  grantor.  I  can  find  no 
authority  in  any  of  the  treatises  or  in  any  of  the  adjudged  cases  for 
holding  that  it  is  revocable. 

As  in  my  judgment  the  right  of  the  complainant  is  entirely  clear  and 
not  subject^ to  revocation,  I  think  it  is  entitled  to  relief  by  way  of  im- 
mediate injunction.^"     *     *     * 

9  The  court  here  discussed  the  following  cases:     Ackroyd  v.  Smith,  10  C. 

B.  164  (1850) ;  Goodrich  v.  Burbank.  12  Allen  (Mass.)  459,  90  Am.  Dec.  161 
(1866) ;  Mavor,  etc.,  of  City  of  New  York  v.  Law,  125  N.  Y.  380,  26  N.  K.  471 
(1891);  East  Jersey  Iron  Co.  v.  Wright,  32  N.  J.  Eq.  248  (1880);  Eckert  v.. 
Peters,  55  N.  J.  Eq.  379,  36  Atl.  491  (1896) ;  Mitchell  v.  D'Olier,  68  N.  J.  Law, 
375,  53  Atl.  467,  59  L.  R.  A.  949  (1902) ;  Wilkins  v.  Irvine,  33  Ohio  St.  138 
(1877) ;  Wood  v.  Leadbitter,  13  M.  &  W.  845  (1845) ;  Wood  v.  Manley,  11  A. 
&  E.  34  (1839) ;  Berry  v.  Potter,  52  N.  J.  Eq.  664,  29  Atl.  323  (1894) ;  Sked  v. 
Pennington,  72  N,  J.  Eq.  599,  65  Atl.  713  (1907). 

10  Ace. :    Goodrich  v.  Burbank,  12  Allen  (Mass.)  459  (1866). 

A.  conveyed  to  B.  in  fee  a  piece  of  land  between  two  rivers,  "reserving  the 
right  of  erecting  a  log  sluice  and  flume  between  my  mill  and  the.  mill  of  said 
grantees."  Held,  A.  could  convey  this  right  in  fee  to  C,  the  owner  of  an- 
other mill,  who  could  use  it  for  fluming  logs  to  his  mill  as  against  B.'s  gran- 
tee of  the  servient  tract.     Ring  v.  Walker,  87  Me.  550,  33  Atl.  174  (1895). 

A.  granted  to  B.,  "his  heirs  and  assigns  forever,"  the  right  "to  take  water 
for  his  family  and  for  any  other  purpose"  out  of  a  specitied  well  on  A.'s 
land.     Held,  assuming  the  right  to  be  in  gross,  B.  could  convey  it  in  fee  to 

C,  who  could  enforce  it  against  A.'s  grantee  of  the  servient  piece.     Poull  v. 
Mockley,  33  Wis.  482  (1873). 

A.  had  a  lease  of  a  tract  of  land.     He  made  a  contract  under  seal  with  B., 

by  which  ho  covenanted  that  B.  should  have  the  right  to  the  exclusive  use 

of  the  fences  surrounding  the  tract  for  advertising  purposes  so  long  as  A. 

or  his  assigns  should  occupy  the  land.     A,  assigned  the  lease  of  the  t'-act 

Big. Rights — 13 


194  BIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

CADWALADER  v.  BAILEY  et  al. 
(Supreme  Court  of  Rhode  Island,  1891.     17  R.  I.  495,  23  Atl.  20.) 

Bill  in  equity  for  an  injunction. 

The  bill  shows  that  Joseph  I.  Bailey  and  Alfred  Smith  were  ten- 
ants in  common  of  a  piece  of  land  known  as  Bailey's  Beach.  .They 
conveyed  a  portion  of  -it  in  fee  to  one  George  Cadwalader,  together 
~  with  the  right  to  place  a  bathing  car  on  the  remaining  part  of  the  beach. 
The  deed  also  contained  the  following  clause : 

"And  we,  the  said  Joseph  I.  Bailey  and  Alfred  Smith,  for  ourselves, 
our  heirs,  executors,  and  administrators,  do  hereby  covenant  to  and 
with  the  said  George  Cadwalader,  his  heirs  and  assigns,  that  no  build- 
ing, excepting  bathing-cars,  shall  ever  be  placed  upon  the  marsh  or 
beach  called  'Bailey  Beach';  that  no  building  shall  ever  be  placed  to 
the  westward  of  a  line  drawn  southerly  from  Bellevue  street,  paral- 
lel to  and  distant  five  hundred  and  thirty-one  feet  westerly  from  the 
Ledge  road,  and  that  none  shall  be  placed  on  a  knoll  overlooking  said 
beach,  and  just  north  of  the  lower  end  of  Bellevue  street."  '  *     *     * 

The  bill  further  shows  that  the  said  George  Cadwalader  entered 
upon  and  took  possession  of  the  land  to  him  conveyed,  and  thereafter- 
w-ards,  on  the  18th  day  of  August,  1864,  by  deed  duly  executed,  sold 
and  conveyed  to  one  William  W.  Tucker,  his  heirs  and  assigns,  the 
land  which  the  said  George  Cadwalader  had  received  as  grantee  in 
the  said  deed  of  October  15,  1852;  but  that  the  said  deed  from  Cad- 
walader to  Tucker  contains  the  clause :  "It  is  understood  and  agreed 
that  the  grantor  reserves  to  himself,  his  heirs  and  assigns,  the  cove- 
nants and  stipulations  contained  in  a  deed  from  J.  I.  Bailey  and  A. 
Smith,  dated  October  15,  1852,  against  building  on  certain  sites  near 
the  bathing  beach,  and  the  right  of  bathing  on  said  beach." 

The  bill  further  shows  that  the  respondents  are  now  seised  and 
■  possessed  of  said  marsh  or  beach  called  "Bailey's  Beach,"  and  of  the 
land  adjacent  thereto,  as  heirs  of  the  said  Bailey  and  Smith,  both 
of  whom  are  deceased,  or  as  heirs  or  devisees  of  the  said  Bailey,  and 
as  heirs  of  the  said  Smith,  and  have  been  so  seised  and  possessed  since 
the  deaths,  respectively,  of  said  Bailey  and  of  said  Smith;  that  the 
said  George  Cadwalader  died  February  3,  1879,  testate,  leaving  his 
wife,  Frances  Cadwalader,  his  sole  devisee  and  legatee ;-  that  she  died 
testate,  January  9,  1880,  leaving  the  complainant,  John  Cadwalader, 
her  residuary  devisee  and  legatee.  The  bill  further  shows  that  the 
respondents,  notwithstanding  said  covenants  in  said  deed  of  October 
15,  1852,  contained,  did,  in  the  year  1890,  erect,  on  the  marsh  or  beach 

to  C,  who  bought  with  notice  of  B.'s  contract.  Held,  B.  may  enforce  against 
C.  the  right  to  use  the  fence  for  advertising  purposes.  Willoughby  v.  Law- 
rence, 116  111.  11,  4  N.  v..  356,  56  Am.  Rep.  758   (1880). 

See,  also.  Hall  v.  Ionia,  38  ^lich.  493  (187S) ;  Columbia  Water  Power  Co. 
V.  Columbia  Electric  Street  Railway,  Light  &  Power  Co.,  43  S.  C.  154,  20  S. 
E.  1002   (1894). 


Ch.  2)  EASEMENTS 


195 


called  "Bailey's  Beach,"  a  permanent_building  of  large  size,  and  not 
bathing-cars,  which  building  was  placjed,  and  is  by  the  respondents  ^till 
maintained,  on  said  marsh  or  beach,  to  the  detriment  of  the  complain- 
ant, and  in  violation  of  his  rights  under  the  said  covenants,  and  with- 
out his  consent,  and  in  defiance  of  his  protests. 

The  prayer  of  the  bill  is  that  the  covenants  contained  in  said  deed 
of  October  15,  1852,  may  be  declared  valid  and  existent  obligations 
upon  the  respondents ;  that  they  may  be  required  to  make  specific 
poiformance,  thereof ;  that  said  covenants  may  be  declared  in  favor 
of  the  complainant,  his  heirs  and  assigns,  as  valid  restrictions  upon 
said  marsh  arid  beach;  and  for  an  injunction.  A  plat  of  the  premises 
is  attached  to  and  made  part  of  said  bill. 

The  answer  admits  the  material  allegations  in  the  bill  to  be  true,  ex- 
cept as  to  any  wrongful  or  unlawful  acts  therein  charged ;  but  avers 
and  sets  up  that  the  complainant  has  no  title  to  the  easements  granted 
in  and  by  said  deed  of  October  15,  1852 — First,  because  the  same 
were  wholly  severed  and  extinguished  by  the  reservation  in  the  .deed 
from  George  Cadwalader  to  said  William  W.  Tucker  of  August  18, 
1864;  or,  second,  because  said  easements  'were  appurtenant  to  the 
land  conveyed  by  said  deed  to  Cadwalader,  of  which  land  no  portion 
is  owned  or  possessed  by  the  complainant}  or,  third,  because  said 
easements  were  not  appurtenant  to  said  land,  (nor  any  land,)  but 
were  rights  in  gross  belonging  to  said  George,  and  not  assignable  nor 
inheritable  nor  devisable.  A  groimd  plan  of  the  bmlding  is  attached 
to  and  made  part  of  the  answ^er. 

TiLLiNGHAST,  J.^^  *  *  *  These  covenants,  in  so  far,  at  any 
rate,  as  they  constitute  a  restriction  against  building  upon  the  re- 
maining land  of  the  grantors — and  this  is  as  far  as  we  are  called  upon 
to  consider  them  in  this  case — we  think  were  manifestly  intended  by  the 
parties  to  be  restrictions  in  favor  of  the  estate  granted;  or,  in  other 
words,  that  said,  covenant  against  building  created  a  negative  easement 
appurtenant  to  the  premises  conveyed.  We  cannot  see  that  the  parties" 
in  making  this  restriction  could  reasonably  have  had  any  other  object 
in  view  than  that  of  securing  and  preserving  to  the  granted  premises 
an  unobstructed  prospect  or  view  of  the  beach  and  sea — a  most  de- 
sirable right,  in  connection  with  summer  residents  in  Newport.  Said 
restrictions  were  well  adapted  to  the  accomplishment  of  that  object. 
It  was  a  useful  and  desirable  object.  Between  the  granted  premises 
and  the  sea  w-as  the  land  of  the  grantors,  out  of  which  this  estate  was 
carved,  and  there  was  nothing  to  obstruct  the  view  of  the  beach  on 
which  the  grantee  had  stipulated  for  the  right  to  place  a  bathing-car. 
It  is  apparent,  from  an  inspection  of  the  premises,  that  buildings  placed 
upon  that  part  of  the  land  included  in  the  restrictions  mentioned,- and 
particularly  upon  the  "knoll,''  would,  to  a  greater  or  less  extent,  ob- 
struct the  prospect  seaward  from  the  granted  premises.     It  was  the 

11  Part  of  the  opinion  is  omitted. 


196  RIGHTS   IN   THE   LAXD   OF   ANOTHER  (Part  2 

possibility  of  such  an  obstruction,  we  think,  which  it  was  the  intention 
of  the  parties  to  guard  against. 

Furthermore,  we  fail  to  see  that  this  restriction  could  have  been  in- 
tended for  the  purpose  of  making  the  bathing  rights  granted  by  said  • 
deed  "available  and  pleasant,"  as  is  contended  by  the  complainant. 
For  such  buildings  as  might  be  constructed  upon  the  restricted  prem- 
ises would  not,  so  far  as  we  are  able  to  discover,  in  any  way  interfere 
with  said  bathing  rights.  Said  "knoll,"  in  particular,  is  so  situated  that 
no  building  placed  thereon  could  by  any  possibility  obstruct  or  preju- 
dice said  right.  Moreover,  the  building  which  has  been  erected  by  the 
respondents  upon  the  restricted  premises  (a  large  and  commodious 
bathing  pavilion)  does  not  in  any  manner  whatever  interfere  with  said 
bathing  right.  The  complainant  is  not  the  owner  of  any  of  the  land 
conveyed  by  the  respondents'  ancestors  in  title  to  George  Cadwalader 
in  October,  1852,  and  has  no  interest  in  the  execution  of  the  covenant 
in  suit;  for,  as  already  stated,  said  George  Cadwalader  conveyed  the 
premises  to  which  the  easement  in  question  was  appurtenant  to  William 
W.  Tucker  in  August,  1864,  reserving  to  himself,  his  heirs  and  as- 
signs, the  covenants  and  stipulations  contained,  in  the  deed  from 
Bailey  and  Smith  of  1852,  against  building  on  certain  sites  near  the 
bathing  beach,  and  the  right  of  bathing  on  said  beach.  We  think  it  not 
improbable  that  the  purpose  of  said  George  Cadwalader  in  severing 
the  easement  from  the  estate  was  to  prevent  said  Tucker  and  his  suc- 
cessors in  title  from  setting  up  the  same  against  his  (said  Cadwalader's) 
right  to  build  upon  a  lot  of  land  which  he  purchased  in  October,  1852, 
which,  as  the  record  shows,  was  a  part  of  the  restricted  premises,  and 
upon  which  he  subsequently  built  and  occupied  a  house,  which  house 
the  complainant  is  now  occupying. 

But,  however  this  may  be,  tlie_easement,  being  a  negative  easement 
appurtenant  to  the  land  conveyed,  was  extinguished  by  operation  of 
law  upon  being  severed  therefrom,  and  hence  is  no  longer  in  existence. 
The  easement,  being  appurtenant  to  the  land,  cannot  exist_alone.  ~It 
has  no -standing  apart  from  the  dominant  estate  to  which  it  was  at- 
tached. Thus,  as  stated  in  Woolr\-ch  on  Ways,  13  ;  "A  wav  appendant 
cannot  be  turned  into  a  way  in  gross,  because  it  is  inseparably  united 
to  the  manor  or  land  to  the  which  it  is  incident."  And,  a^  stated  in 
Washb.  Easem.  (4Lh  Ed.)  26:  "Though  a  man  may  acquire  an  ease- 
ment in  gross,  like  a  right  of  way  over  another's  land,  separate  and 
distinct  from  the  ownership  of  any  other  estate  to  which  it  is  ap- 
pendant, yet,  if  his  right  to  such  way  result  from  his  ownership  of  a 
parcel  of  land  to  which  it  is  appendant,  he  cannot  by  grant  separate 
the  easement  from  the  principal  estate  to  which  it  is  appendaiit^  so  as 
to  turn  it  into  a  way  in  gross  in  the  hands  of  his  grantee."  See,  also, 
Garrison  v.  Rudd,  19  111.  558,  564,  and  cases  cited;  3  Greenl.  Cruise, 
83;  Ackroyd  v.  Smith,  10  C.  B.  164;  Hall  v.  Lawrence,  2  R.  I.  218, 
242,  57  Am.  Dec,  715,  Furthermore,  as  stated  in  Trustees  of  Colum- 
bia College  v.  Lynch,  70  N,  Y,  440,  26  Am,  Rep,  615:    "A  negative 


Ch.  1')  EASEMENTS  197 

easement,  by  which  the  owner  of  lands  is  restricted  in  their  use,  can 
^onlyjDC  created  by  covenant  in  favor  of  other  lands  not  owned  by  the 
grantor  and  covenantor."  See,  also.  Hills  v.  Miller,  3  Paige  (N.  Y.) 
254," 24  Am.  Dec.  218.  But  for  the  reservation  iu  the  deed  from  Cad- 
walader  to  Tucker,  the  easement  created  would  doubtless  have  passed 
to  the  latter,  whether  the  grant  in  terms  had  embraced  it  or  not,  and 
this  would  also  be  so  whether  such  grant,  in  terms,  embraced  privileges 
and  appurtenances  or  not.  Washb.  Easem.  (4th  Ed.)  p.  40,  and  cases 
cited. 

It  follows,  then,  that  the  complainant,  never  having  owned  the  domi- 
nant estate  described  in  the  bill,  has  no  standing  in  a  court  of  equity  to 
enforce  rights  which  were  appurtenant  thereto.  So  far  as  the  bathing 
rights  are  concerned,  no  question  is  made  in  this  case  concerning  the 
right  of  enjoyment  thereof  by  the  complainant.  For  the  reason  above 
stated  we  are  of  the  opinion  that  the  complainant  has  not  made  out  a 
case  which  entitles  him  to  relief.  The  bill  must  therefore  be  dis- 
missed/* 


HILL  v.  TUPPER. 

(Court  of  Exchequer,  1863.     2  Hurl.  &  C.  121.) 

Declaration. — For  that,  before  and  at  the  time  of  the  committing  by 
the  defendant  of  the  grievances  hereinafter  mentioned,  the  plaijitiff 
was  entitled  to,  and  had  and  was  possessed  of,  the  sole  and  exclusive 
right  or  liberty  to  put  or  use  boats  on  a  certain  canal  called  the  Basing- 
stoke Canal,  for  the  purposes  of  pleasure  and  to  let  the  same  boats  for 
hire  on  the  said  canal  for  the  purposes  of  pleasure.  Yet  the  plaintiff 
says  that,  whilst  he  was  so  entitled  and  possessed  as  aforesaid,  the  de- 
fendant, well  knowing  the  premises,  wrongfully  and  unjustly  disturbed 
the  plaintiff  in  the  possession,  use,  and  enjoyment  of  his  said  right  or 
liberty,  by  wrongfully  and  unjustly  putting  and  using,  and  causing 
to  be  put  and  used,  divers  boats  on  the  said  canal  for  the  purposes  of 
pleasure,  and  by  letting  boats  on  the  said  canal  for  hire,  and  other- 
wise for  the  purposes  of  pleasure.     By  means  of  which  said  premises 

12ACC.:  Blood  v.  Millard.  172  Mass.  65,  51  N.  E.  527  (1S9S1,  right  to  draw 
water ;  Reise  v.  Enos,  76  Wis.  634,  45  N.  W.  414,  S  L.  R.  A.  617  (1S90),  right 
of  way.  Compare  McKenna  v.  Brooklyn  Union  Elevated  R,  Co.,  184  N.  Y. 
891,  77  N.  E.  615  (1906). 

Water  rights  in  irrigation  ditches  under  the  Idaho  statutes  have  been 
held  transferable  to  the  owners  of  other  lands.  Hard  v.  Boise  Citv  Irriga- 
tion &  Land  Co.,  9  Idaho,  589,  76  Pac.  331,  65  L.  R.  A.  407  (1904). 

A.  owned  in  fee  a  right  in  gross  to  a  specified  amount  of  water  power. 
For  twelve  years  he  used  it  exclusively  and  continuously  in  connection  with 
a  mill  also  owned  by  him,  and  then  mortgaged  the  mill  to  B.,  describing 
the  property  by  metes  and  bounds,  and  not  mentioning  the  ■  water  power. 
The  property  with  the  power  was  worth  $5,000  more  than  the  mortgage 
debt;  without  the  water  power,  it  was  worth  $4,000  less  than  the  mortgage 
debt.  Held,  the  water  power  passed  to  the  mortgagee.  Bank  of  British 
North  America  v.  Miller  (C.  C.)  6  Fed.  545  (1881).  See,  also,  Fisher  v.  I'air, 
34  S.  C.  203.  13  S.  E.  470,  14  L.  R.  A.  333  (1890). 


19S  RIGHTS   IN   THK    LAND   OF   ANOTHER  (Part  2 

the  plaintiff  was  not  only  greatly  disturbed  in  the  use,  enjoyment,  and 
possession  of  his  said  right  and  liberty,  but  has  'also  lost  great  gains 
and  profits  which  he  ought  and  otherwise  would  have  acquired  from 
the  sole  and  exclusive  possession,  use,  and  enjoyment  of  his  said  right 
or  liberty,  and  was  otherwise  greatly  aggrieved  and  prejudiced. 

Pleas. — First :  not  guilty.  Secondly :  that  the  plaintiff  was  not  en- 
titled to,  nor  had  he,  nor  was  he  possessed  of,  the  sole  and  exclusive 
right  or  liberty  to  put  or  use  boats  on  the  said  canal  for  the  purposes 
of  pleasure,  nor  to  let  the  said  boats  for  hire  on  the  said  canal  for 
the  purposes  of  pleasure  as  alleged. — Issues  thereon. 

At  the  trial,  before  Bramwell,  B.,  at  the  London  Sittings,  after  last 
Hilary  Term,  the  following  facts  appeared : — Under  the  18  Geo.  3,  c. 
75,  the  Company  of  Proprietors  of  the  Basingstoke  Canal  Navigation 
were  incorporated  with  perpetual  succession  and  a  common  seal,  for 
the  purpose  of  making  and  maintaining  a  navigable  canal  from  the 
town  of  Basingstoke,  in  the  county  of  Southampton,  to  communicate 
with  the  river  Wey  in  the  parish  of  Chertsey,  in  the  county  of  Surrey. 
The  lands  purchased  by  the  company  of  proprietors,  under  their  par- 
liamentary powers,  were  by  the  Act  vested  in  the  Company, 

By  the  100th  section  of  the  Act  it  is  enacted :  "That  it  shall  and  may 
be  lawful  for  the  owners  and  occupiers  of  any  lands  or  grounds  ad- 
joining to  the  said  canal,  to  use  upon  the  said  canal  any  pleasure-boat 
or  boats,  or  any  other  boat  or  boats,  for  the  purpose  of  husbandry  only, 
or  for  conveying  cattle  from  one  farm,  or  part  of  a  farm,  or  lands,  to 
any  other  farm  or  lands  of  the  same  owner  or  occupier,  without  in- 
terruption from  the  said  company  of  proprietors,  their  successors  or 
assigns,  agent  or  agents,  and  without  paying  any  rate  or  duty  for  the 
same ;  and  so  as  such  boat  or  boats  be  not  above  seven  feet  in  breadth, 
and  do  not  pass  through  any  lock  to  be  made  on  the  said  navigation, 
without  the  consent  of  tlte  said  company  of  proprietors,  their  succes- 
sors or  assigns,  or  be  employed  for  carrying  any  goods,  wares,  or  mer- 
chandise to  market  or  for  sale,  or  any  person  or  persons  for  hire ;  and 
so  as  the  same  shall  not  obstruct  or  prejudice  the  said  navigation,  or 
the  towing-paths,  or  obstruct  any  boats  passing  upon  the  said  naviga- 
tion liable  to  pay  the  rates  or  duties  aforesaid;  and  the  owner  of  all 
such  pleasure-boats,  or  other  boats,  shall  in  his- own  lands  or  grounds, 
make  convenient  places  for  such  boats  to  lie  in,  and  shall  not  suffer 
them  to  be  moored  or  remain  upon  the  said  canal." 

The  defendant  was  the  landlord  of  an  inn  at  Aldershot  adjoining  the 
canal,  and  his  premises  abutted  on  the  canal  bank.  The  plaintiff,  who 
was  a  boat  proprietor,  also  occupied  premises  at  Aldershot  on  the  bank 
of  the  canal,  which  he  held  under  a  demise  from  the  company  of  pro- 
prietors, and  by  virtue  of  the  demise  claimed  the  exclusive  right_  of 
letting  out  pleasure-boats  for  hire  upon  the  canal,  which  was  the  right 
the  defendant  was  alleged  to  have  disturbed. 

The  lease  under  which  the  plaintiff  claimed  this  right  was  dated  the 
29th  of  December,  1860,  and  by  it,  in  consideration  of  the  rents,  cove- 


Ch.  2)  EASEMENTS  199 

nants,  and  agreements  therein  contained,  the  said  company  of  proprie- 
tors demised  to  the  plaintiff,  under  their  common  seal,  for  the  term  of 
seven  years  from  the  24th  of  June,  1860,  at  the  yearly  rent  of  i25., 
"All  that  piece  or  parcel  of  land  containing  nineteen  poles  or  there- 
abouts, adjoining  Aldershot  wharf,  situate  in  the  parish  of  Aldershot 
aforesaid,  and  the  wooden  cottage  or  tenement,  boathouse,  and  all  other 
erections  now  or  hereafter  being  or  standing  thereon,  &c."  (describing 
the  premises  by  boundaries,  and  by  reference  to  a  plan),  "together  with 
the  appurtenances  to  the  same  premises  belonging;  and  also  the  sole 
and  exclusive  right  or  liberty  to  put  or  use  boats  on  the  said  canal, 
and  let  the  same  for  hire  for  tlie  purposes  of  pleasure  only."  The  lease 
contained  various  covenants  framed  with  the  object  of  preventing  any 
interference  by  the  plaintiff's  pleasure-boats  with  the  navigation  of  the 
canal,  and  a  proviso  for  re-entry  for  any  breach  of  the  covenants. 

The  evidence  of  the  defendant  was  at  variance  with  that  acfduced  on 
behalf  of  tlie  plaintiff  upon  the  question  whether  the  defendant  had 
ever  let  out  boats  upon  the  canal  for  hire,  in  the  sense  of  a  direct  money 
payment.  The  defendant  did  not  deny  that  he  kept  pleasure-boats,  and 
used  them  upon  the  canal,  but  stated  that  he  kept  them  for  the  use  of 
his  family ;  he  admitted,  however,  that  gentlemen  had  come  from  time 
to  time  to  his  inn  and  used  these  boats  for  fishing  and  bathing. 

The  learned  Judge  reserved  leave  to  move  to  enter  a  nonsuit  or  ver- 
dict for  the  defendant,  and  left  to  the  jury  the  question  whether  the 
defendant  had  obtained  any  pecuniary  advantage  from  the  boats.  The 
jury  found  a  verdict  for  the  plaintiff" ;   damages,  a  farthing. 

Pollock,  C.  B.^^  We  are  all  of  opinion  that  the  rule  must  be  abso- 
lute to  enter  the  verdict  for  the  defendant  on  the  second  plea.  After 
the  very  full  argument  which  has  taken  place,  I  do  not  think  it  netes- 
sary  to  assign  any  other  reason  for  our  decision,  than^  that  the  case  of 
Ackroyd  v.  Smith,  10  C.  B.  164  (E.  C.  L.  R.  vol.  70),  expressly  de- 
cided that  it  is  not  competent  to  create  rights  unconnected  with  the  use 
and  enjoyment  of  fand,  and  annex  them  to  it  so  as  to  constitute  a  prop- 
erty in  the  grantee.  This  grant  merely  operates  as  a  license  or  covenanf 
on  the  part  of  the  grantors,  and  is  binding  on  them  as  between  them- 
selves and  the  grantee,  but  gives  him  no  right  of  action  in  his  own  name 
fqr_any  infringement  of  the  supposed  exclusive  right..  It  is  argued 
that,  as  the  owner  of  an  estate  may  grant  a  right  to  cut  turves,  or  to 
fish  or  hunt,  there  is  no  reason  why  he  may  not  grant  such  a  right  as 
that  now  claimed  by  the  plaintiff.  The  answer  is,  that  the  law  will  not 
allow  it.  So  the  law  will  not  permit  tEe~owner  of  ah  estate  to  grant 
It  alternately  to  his  heirs  male  and  heirs  female.  A^new^species  of  in- 
corporeal hereditament  cannot  be  created  at  the  will  and  pleasure  of 
the  owner  of  property ;  but  he  must  be  content  to  accept  the  estate  and 
"the  right  to  dispose  of  it  subject  to  the  law  as  settled  by  decisions  or 
controlled  by  Act  of  Parliament.  A  grantor  may  bind  himself  by  cove- 
is  The  opinion  of  Bramwell,  J.,  is  omitted. 


200  RIGHTS   IN  .THE   LAND   OP   ANOTHER  (Part  2 

nant  to  allow  any  right  he  pleases  over  his  property,  but  he  cannot  an- 
nex to  it  a  new  incident,  so  as  to  enable  the  grantee  to  sue  in  his  own 
name  for  an  infringement  of  such  a  limited  right  as  that  now  claimed. 
Martin,  B.  I  am  of  the  same  opinion.  This  grant  is  perfectly 
valid  as  between  the  plaintiff  and  the  canal  Company ;  but  in  order  to 
support  this  action,  the  plaintiff  must  establish  that  such  an  estate  or 
interest  vested  in  him  that  the  act  of  the  defendant  amounted  to  an 
eviction.  None  of  the  cases  cited  are  at  all  analogous  to  this,  and  some 
authority  must  be  produced  before  we  can  hold  that  such  a  right  can 
be  created.  To  admit  the  right  would  lead  to  the  creation  of  an  in- 
finite variety  of  interest  in  land,  and  an  indefinite  increase  of  possible 
estates.  The  only  consequence  is  that,  as  between  the  plaintiff  and  the 
canal  Company,  he  has  a  perfect  right  to  enjoy  the  advantage  of  the 
covenant  or  contract;  and,  if  he  has  been  disturbed  in  the  enjoyment 
of  it,  he  must  obtain  the  permission  of  the  canal  Company 'to  sue  in 
their  name.  The  judgment  of  the  Court  of  Common  Pleas  in  Ack- 
royd  V.  Smith,  10  C.  B.  164  (E.  C.  L.  R.  vol.  70),  and  of  Lord  Broug- 
ham, C,  in  Keppell  v.  Bailey,  2  Myl.  &  K.  517,  535,  are,  in  the  absence 
of  any  case  to  the  contrary,  ample  authority  for  our  present  decision.^* 

n  Compare  Schmoele  v.  Betz,  212  Pa.  32,  61  Atl.  525,  108  Am.  St.  Kep,  845 
(1905). 

It  has  been  held  that  there  can  be  no  easement  right  to  a  breeze,  Webb  v. 
Bird,  13  C.  B.  N.  S.  841  (1863) ;  Chastey  v.  Ackland,  [1895]  2  Ch.  389 ;  nor 
to  percolating  water,  Wheelock  v.  Jacobs,  70  Vt.  162,  40  Atl.  41,  43  L.  R.  A. 
105,  67  Am.  St.  Rep.  659  (1897). 

The  following  rights  in  addition  to  those  considered  in  the  other  sections 
of  this  chapter  have  been  recognized  as  easements.  To  maintain  a  signboard, 
Hoare  v.  Board  of  Works,  L.  R.  9  Q.  B.  Ca.  296  (1874) ;  Moody  v.  Steggles, 
12  Ch.  Div.  261  (1879) ;  to  have  light  and  (through  defined  passages)  air  from 
the  premises  of  another.  Hall  v.  Brewing  Co.,  49  L.  J.  Ch.  N.  S.  655  (1880) ; 
to  open  a  sluiceway  on  servient's  land  to  relieve  the  dominant  land  from 
flood  water,  Simpson  v.  Godmanchester,  [1896]  1  Ch,  214;  to  pile  and  hoist 
merchandise  and  to  swing  a  projecting  shutter,  Richardson  v.  Pond,  15  Gray 
(Mass.)  387  (1860) ;  to  stretch  a  clothesline  and  hang  clothes,  Steiner  v.  Peter- 
man  (N.  J.  Ch.)  63  Atl.  1102  (1906).  See,  further,  part  I,  chapters  II  to  VI, 
ante,  and  chapters  IV  and  V,  post. 

A.  had  a  lease  for  years  of  a  building.  He  assigned  his  interest  in  part 
of  the  building  to  B.,  reserving  a  right  of  passage  in  certain  halls  in  that 
part  of  the  building  so  assigned  for  the  benefit  of  the  part  kept  by  him. 
Subsequently  A.'s  interest  passed  to  X.  and  B.'s  to  Y.,  the  lease  meanwhile 
having  been  renewed.  Held,  X.  may  exercise  the  right  of  passage  during 
the  life  of  the  lease  and  the  renewal.  Newhoft  v.  Mayo,  48  N.  J.  Eq.  619, 
23  Atl.  265,  27  Am.  St.  Rep.  455   (1891). 

An  easement  may  be  appurtenant  to  an  estate  for  life,  in  which  case 
it  terminates  with  the  life  estate.  Hofi:man  v.  Savage,  15  Mass.  130  (1818). 
Compare  Rymor  v.  ISIcIlroy,  [1897]  1  Ch.  528. 

An  easement  may  be  appurtenant  to  a  profit.  Hanbury  v.  Jenkins,  [1901] 
2  Ch.  401,  421. 


Ch.  2)  EASEMENTS  201 

SECTION  2.— SCOPE  OF  EASEMENTS 


HOWELL  V.  KING. 

(Court  of  Common   Pleas,  1674.     1  Mod.  190.) 

Trespass,  for  driving  cattle  over  the  plaintiff's  ground.  The  case 
was,  A.  has  a  way  over  B.'s  ground  to  Black-Acre,  and  drives  his 
beasts  over  B.'s  ground  to  Black-Acre,  and  then  to  another  place  ly- 
ing beyond  Black-Acre.  And,  whether  this  was  lawful  or  no?  was 
the  question,  upon  a  demurrer. 

It  was  urged,  that  when  his  beasts  were  at  Black-Acre,  he  might 
drive  them  whither  he  would. 

On  the  other  side  it  was  said,  that  by  this  means  the  defendant  might 
purchase  a  hundred  or  a  thousand  acres  adjoining  to  Black- Acre,  to 
which  he  prescribes  to  have  a  way ;  by  which  means  the  plaintiff  would 
lose  the  benefit  of  his  land :     and  that  a  prescription  presupposed  a  •  r 

grant,  and  ought  to  be  continued  according  to  the  intent  of  its  original 
creation. 

The  whole  Court  agreed  to  this. — And  judgment  was  given  for  the  ' 

plaintiff.''' 

I 

WILLIAMS  V.  JAMES. 

(Court  of  Common  Pleas,  1867.     L.  R.  2  C.  P.  577.) 

Declaration  for  trespass  to  land. 

Fifth  plea,  that  one  Ann  Morgan  was  owner  in  fee  of  certain  land, 
and  was  entitled  by  immemorial  user  to  a  right  of  way  over  the  plain- 
tiff's land,  on  foot,  and  with  waggons,  carts,  and  horses,  to  a  public 
highway  from  her  said  land,  for  the  more  convenient  occupation  there- 
of ;  that  Ann  Morgan  demised  this  land  with  its  appurtenances  to  one 
Jenkins ;  and  that  the  alleged  trespasses  were  the  use  of  the  right  of 
way  by  the  defendant,  as  the  servant  of  Jenkins. 

Issue  and  new  assignment  of  excess  in  the  user  of  the  way. 

At  the  trial  before  Pigott,  B.,  at  the  spring  assizes  for  Monmouth- 
shire, the  following  facts  were  proved: — Ann  Morgan  was  owner  in 
fee  of  a  field  called  the  Nine  acre  field,  and  of  two  other  fields  ad- 
joining, called  Parrott's  land.  These  three  fields  were  in  the  occupa- 
tion of  R.  Jenkins.  There  was  from  time  immemorial  a  right  of  way 
on  foot,  and  for  waggons,  carts,  and  horses,  from  the  Nine  acre  field 
over  the  plaintiff's  land  to  a  public  highway.    There  was  no  right  of 

lEAcc:  Lawton  v.  Ward,  1  Ld.  Raym.  75  (1696).  Compare  Tuttle  v.  Kil- 
roa,  177  Mass.  146,  58  N.  E.  682  (1900). 


202  RIGHTS   IX   THE   LAND   OF   ANOTHER  .  (Part  2 

way  over  the  plaintiff's  land  from  Parrott's  land.  In  the  summer  of 
1866,  Jenkins  mowed  the  Nine  acre  field  and  Parrott's  land,  and  stacked 
all  the  hay  upon  the  Nine  acre  field.  In  September,  1866,  Jenkins  sold 
the  hay  to  the  defendant,  who  carted  it  over  the  plaintiff's  land  to  the 
highway,  which  was  the  alleged  trespass. 

The  jury  found,  first,  that  there  was_anJmmemoriaL.nghlL_Qlj^ 
from  the  Nine  acre  field  to  the  highway;  secondly,  that  the  stacking 
of  the  hay  was  done  honestly,  and  not  to  get  the  way  further  on ;  third- 
ly, that  there  was  no  excess  in  the  user  of  the  way  by  the  defendant, 
apart  from  the  question  of  defendant's  right  to  cart  the  hay  grown  on 
Parrott's  land  over  the  plaintiff's  land ;  fifthly,  if  Parrott's  land  hay 
could  not  be  legally  carried  over  the  plaintiff's  land,  then  damages  40s. 

Pigott,  B.,  directed  a  verdict  for  40s.  to  be  entered  for  the  plaintiff, 
with  leave  to  the  defendant  to  move  to  enter  the  verdict  for  him. 

A  rule  having  been  obtained  accordingly — 

WiLLES,  J.  The  distinction  between  a  grant  and  pres^ri£tign_is 
obvious.  In  the  case  of  proving  a  right  by  prescription  the  user  of 
the  right  is  the  only  evidence.  In  the  ease  of  a  grant  the  language  of 
the  instrument  can  be  referred  to,  and  it  is  of  course  for  the  Court  to 
construe  that  language ;  and  in  the  absence  of  any  clear  indication  of 
the  intention  of  the  parties,  the  maxim  that. a  grant  must  be  construed 
most  strongly  against  the  grantor  must  be  applied.  Accordingly,  in 
South  Metropolitan  Railway  Company  v.  Eden,  16  C.  B.  42,  where  a 
grant  was  produced  without  stating  the  object  of  the  gsant,  it  was  the 
opinion  of  the  judges  that  the  grant  was  general,  and  that  the  way 
in  that  case  might  be  used  to  any  part  of  the  land  to  which  the  way 
was  granted. 

I  agree  with  the  argument  of  Mr.  Jelf  that  in  cases  like  this,  where 
a  way  has  to  be  proved  by  user,  you„cannot  extend  .the,  puyiQS£s.Jor 
which  the  way  may  be  used,  or  for  which  it  might  be  reasonably  in- 
ferred that  parties  would  have  intended  it  to  be  used.  The  land  in 
this  case  was  a  field  in  the  country,  and  apparently  only  used  for  rustic 
purposes.  To  be  a  legitimate  user  of  the  right  of  way,  it  must  be  used 
for  the  enjoyment  of  the  Nine  acre  field,  andJiQt  colourably  ioxMhs-X 
closes.  I  quite  agree  also  with  the  argument  that  the  right  of  way  can 
only  be  used  for  the  field  in  its  ordinary  use  as  a  field.  The  right  could 
not  be  used  for  a  manufactory  built  upon  the  field.  The  use  must  be 
the  reasonable  use  for  the  purposes  of  the  jand.  in  the  condition  in 
which  it  was  while  the  user  took  place.  A  right  of  way  by  user  was 
here  proved,  and  I  think  the  verdict  of  the  jury  excludes  the  excess 
of  the  user  charged  by  the  plaintiff.  Plonest  user  of  the  Nine  acre 
field  must  have  been  understood  by  the  jury  in  the  large  sense  of  bona 
fide  and  reasonable,  not  a  user  in  order  to  get  an  advantage  to  which 
the  defendant  was  not  entitled.  The  finding  of  the  jury  was,  that  the 
land  was  used  honestly,  and  not  in  order  to  get  a  right  of  way  further 
on.  This  is  equivalent  to  finding  that  the  stacking  of  the  hay  on  the 
Nine  acre  field  was  in  the  reasonable  and  ordinary  use  of  it  as  a  field; 


Ch.  2)  EASEMENTS  203 

also  that  the  carting  was  from  the  Nine  acre  field  and  not  from  Par- 
rott's  land.  I  think  both  these  propositions  are  included  in  the  finding. 
I  think,  therefore,  that  the  rule  must  be  made  absolute.  We  could 
not  refuse  this  without  splitting  straws  on  a  subject  which  ought  to  be 
dealt  with  substantially.  The  case  has  been  well  argued  on  both  sides,- 
and  Mr.  Jelf  has  said  all  that  could  be  said  for  the  plaintiff.^* 


P 


PARKS  V.  BISHOP. 

(Supreme  Judicial  Court  of  Massachusetts,  1S7U.     120  Mass.  340,  21  Am.  Rep. 

519.) 

Bill  in  equity  alleging  that  the  plaintiff'  was  the  owner  of  the  fee  in 
the  soil  and  of  a  right  of  way  in  a  passageway  leading  from  Purchase 
Street  by  land  of  the  plaintiff  to  a  shop  of  the  defendant,  which  ad- 
joined the  rear  of  a  store  of  the  defendant  on  Atlantic  Avenue ;  and 
praying  that  the  defendant  might  be  restrained  from  using  the  way  as 
appurtenant  to  the  land  on  which  that  store  was  built,  or  for  the  pur- 
pose of  passing,  or  of  carrying  merchandise  or  other  things,  between 
that  store  and  Purchase  Street.  The  answer  alleged  that  the  defend- 
ant had  acquired  a  right  to  such  use  by  adverse,  possession. 

Hearing  before  Wells,  J.,  who  ordered  an  injunction  to  issue,  and  re- 
served the  case  for  the  consideration  of  the  full  court,  upon  a  report, 
the  material  part  of  which  is  stated  in  the  opinion. 

Gray,  C.  J.  The  report  of  the  judge,  before  whom  this  case  was 
heard  in  the  first  instance,  states  the  facts  proved  at  the  hearing,  and 
his  decision  that  the  use  of  the  way  in  question  by  the  defendant,  in 
the  manner  and  for  the  purpose  complained  of,  was  not  justified  by 
any  right  acquired  by  Lakin  (under  whom  the,  defendant  claims) 
through  the  use  of  the  way  by  him  as  stated  in  the  report,  and  that  an 
injunction  should  issue,  subject  to  the  revision  and  determination  of  the 
full  court  upon  the  question,  among  others,  "whether  Lakin,  upon  the 
facts  stated,  had  acquired  such  a  right  of  way  as  to  constitute  a  good 
defence."  The  report,  being  on  the  equity  side  of  the  court,  submits 
to  our  revision  all  inferences  of  fact,  as  well  as  conclusions  of  law. 


16  Bovill,  C.  J.,  and  Smitti,  J.,  delivered  concurring  opinions. 

See  Finch  v.  Raihvaj-  Co.,  L.  R.  5  Exch.  Div.  254  (1879). 

A.  owned  a  piece  of  land,  appurtenant  to  which  was  a  right  of  way  over 
a  private  road  on  B.'s  land.  X.  owned  a  tract  of  land  adjoining  A.'s,  on 
which  he  was  desirous  of  building.  He  rented  A.'s  piece  by  a  parol  lease  at 
a  rental  of  £1.  per  annum  and  hauled  his  building  material  over  the  private 
road,  depositing  it  temporarily  on  the  A.  piece.  The  jury  found  that  the  way 
was  really  being  us6d  merely  as  a  means  of  getting  to  the  X.  piece.  Held, 
B.  may  recover  against  X.  in  trespass.  Skull  v.  Glenister,  16  C.  B.  N.  S.  81 
(1864).  See  McCullough  v.  Broad  Exch.  Co.,  101  App.  Div.  566,  92  iN.  Y. 
Supp.  533  (1905),  post,  p.  287.  Compare  Kretz  v.  Fireproof  Storage  Co.,  127 
Minn.  304,  149  N.  W.  618,  955  (1914J. 


204  EIGHTS  IN  THE   LAND   OF   ANOTHER  (Part  2 

Wright  V.  Wright,  13  Allen,  207,  209;   Stockbridge  Iron  Co.  v.  Hud- 
son Iron  Co.,  102  Mass.  45,  47. 

When  a  right  of  way  to  certain  land  exists  by  adverse  use  and  en- 
joyment only,  although  evidence  of  the  exercise  of  the  right  for  a  sin- 
gle purpose  will  not  prove  a  right  of  way  for  other  purposes,  yet  proof 
that  it  was  used  for  a  variety  of  purposes,  covering  every  purpose  re- 
quired by  the  dominant  estate,  in  its  then  condition,  is  evidence  from 
which  may  be  inferred  a  right  to  use  the  way  for  all  purposes  which 
may  be  reasonably  required  for  the  use  of  that  estate  while  substantial- 
ly in  the  same  condition.  Ballard  v.  Dyson,  1  Taunt.  279;  Cowling 
V.  Higginson,  4  M.  &  W.  245 ;  Dare  v.  Heathcote,  25  L.  J.  (N.  S.) 
Exch.  245 ;  Williams  v.  James,  L.  R.  2  C.  P.  577 ;  Sloan  v.  HoUiday, 
30  L.  T.  (N.  S.)  757.  But  if  Jthe  condition  and  character  of  the  dom- 
inant estate  are  substantially  altered — as  in  the  case  of  a  way  to  carry 
off  wood  from  wild  land,  which  is  afterwards  cultivated  and  built  up- 
on; or  of  a  way  for  agricultural  purposes,  to  a  farm,  which  is  after- 
wards turned  into  a  manufactory  or  divided  into  building  lots — the 
right  of  way  cannot  be  used  for  new  purposes,  required  by  the  alter- 
ed condition  of  the  property,  and  imposing  a  greater  burden  upon  the 
servient  estate.  Atwater  v.  Bodfish,  11  Gray,  150;  Willes,  J.,  in  L. 
R.  2  C.  P.  582 ;   Wimbledon  Commons  v.  Dixon,  1  Ch.  D.  362. 

In  the  present  case,  the  report  states  that  for  more  than  twenty  years 
Lakin  had,  in  the  shop  abutting  upon  the  passageway  in  question,  a 
steam  engine,  which  was  driven  by  boilers  in  the  larger  building  on  the 
lot  behind,  and  was  used  for  operating  the  machinery  in  that  building, 
the  three  stories  of  which  were  respectively  occupied  for  a  blacksmith's 
shop,  a  carriage  shop,  and  a  paint  shop ;  that  there  was  a  door  in  the 
wall  between  the  two  buildings,  which  was  constantly  used  for  the 
purpose  of  passing  between  them  through  the  engine  room  and  over 
the  passageway;  that  the  space  in  the  passageway  was  occasionally 
used  for  the  purpose  of  setting  tires  upon  wheels,  in  connection  with 
the  work  in  the  shop ;  that  all  the  coal  for  use  under  the  boilers  was 
brought  in  through  the  passageway,  and  deposited  in  the  basement  or 
cellar  under  the  engine  room,  until  used  in  the  regular  course  of  busi- 
ness ;  and  that  the  way  was  used  generally  as  a  back  entrance  or  thor- 
oughfare, as  convenience  required,  in  connection  with  the  shops  oc- 
cupied by  Lakin,  without  question  or  objection,  foruHore  thanjwenty.. 
years. 

These  facts  appear  to  the  court  to  justify  and  require  the  conclu- 
sion that  Lakin  had  acquired  by  prescription  a  right  of  way  for  all 
purposes  reasonably  necessary  for  a  manufactory  upon  the  two  lots, 
and  which,  upon  the  buildings  being  destroyed  by  fire  and  rebuilt  for 
a  manufactory  and  storehouse,  he  was  entitled  to  use  for  the  purpose 
of  bringing  goods  into  the  smaller  building  abutting  upon  the  passage- 
way, to  be  thence  hoisted  up  into  the  larger  building,  for  storage  and 
use  therein ;  that  there  has  been  no  substantial  alteration  in  the  con- 
dition or  character  of  the  dominant  estate,  and  no  change,  except  in 


Ch.  2)  EASEMENTS  205 

degree,  in  the  exercise  of  the  easement,  and  that  for  this  reason  the 
defendant  has  not  exceeded  his  rights  in  the  use  of  the  passageway. 
Bill  dismissed.^^ 


WATSON  V.  BIOREN. 

(Supreme  Court  of  Pennsylvania,  1814.     1  Serg.  &  R.  227,  7  Am.  Dec.  617.) 

l^his  was  an  action  on  the  case  for  disturbing  the  plaintiff  in  his  right 
of  way,  and  for  stopping  his  water  course. 

The  cause  was  tried  at  Nisi  Prius,  before  Tilghman,  C.  J.,  in  Febru- 
ary, 1814,  when  a  verdict  was  found  for  the  plaintiff,  subject  to  the 
opinion  of  the  court  in  bank,  upon  the  following  facts : 

By  deed,  dated  December  18th,  1805,  Elisha  Gordon  and  wife,  con- 
veyed to  the  plaintiff  a  lot  of  ground,  .on  the  south  side  of  Chesnut 
street,  containing  ten  feet  in  front  on  Chesnut  street,  and  running 
back  seventy-seven  to  a  three  feet  wide  alley,  which  leads  into  Or- 
phan's court  or  Carter's  alley,  with  free  and  uninterrupted  ingress, 
egress,  and  regress,  &c.  in  common  with  the  owners  and  occupiers  of 
the  lots  adjoining  the  same,  and  of  a  water  course  over  and  along  the 
said  three  feet  wide  alley,  from  the  premises  to  Orphan's  court.  On 
the  14th  of  July,  1810,  the  plaintiff  conveyed  to  John  Conyers,  all  the 
said  lot  of  ground,  except  a  small  piece  three  feet  wide  by  thirteen  feet 
long,  at  the  southwest  corner  of  the  lot,  adjoining  the  said  alley,  Con- 
yers afterwards  sold  this  lot  to  the  defendant,  who  owned  the  adjoining 
ground  on  the  east,  and  was  proprietor  of  the  alley.    The  house  and  lot 

17  In  addition  to  the  cases  cited  in  the  court's  opinion,  see  Baldwin  v. 
Boston  &  M.  R.  R.,  181  Mass.  166,  6.3  N.  E.  428  (1902). 

A.  claimed  by  prescription  a  right  of  way  in  a  narrow  passage  over  B.'s 
land,  for  the  purpose  of  driving  horned  cattle  to  a  building  now  used  as  a 
slaughterhouse,  before  that  as  a  stable,  and  much  earlier  as  a  barn  A.  had 
been  accustomed  to  drive  a  cart  through  the  passage,  ordinarily  drawn  by 
a  horse,  on  one  or  two  occasions  drawn  by  an  ox ;  the  preceding  occupier 
had  driven  hogs  down  the  passage  to  the  slaughterhouse.  Held,  a  verdict 
against  A.'s  claim  will  not  be  disturbed.  Ballard  v.  Dyson,  1  Taunt.  279 
(1808). 

For  over  20  years  A.,  and  his  friends  visiting  him,  had  used  a  path  over 
B.'s  yard  to  the  back  door  of  A.'s  house.  A.  then  opened  a  shop  in  the 
front  of  his  house,  and  some  few  customers  came  by  tho,  path  at  the  rear. 
Held,  this  is  not  a  misuse  of  the  easement.  Sloan  v.  Holliday,  30  L.  T.  N. 
S.  757  (1874).  See,  also.  Cowling  v.  Higginson,  4  M.  &  W.  245  (1838) ;  Wim- 
bledon Conservators  v.  Dixon,  L.  R.  1  Ch.  Div.  362   (1875). 

From  1866  to  1878  A.  wrongfully  discharged  through  a  pipe  in  B.'s  land 
his  sink  drainage,  there  being  until  then  no  bathroom  in  A.'s  house,  in 
1878  A.  installed  a  bathroom,  and  from  then  until  1888  discharged  both  sink 
and  water-closet  drainage  through  the  pipe.  In  1888  B.  stopped  the  pipe. 
Held,  A.  has  a  right  to  discharge  sink  drainage,  but  not  water-closet  drain- 
age. Shaughnessey  v.  Leary,  162  Mass.  108,  38  N.  E.  197  (1894).  Compare 
Baxendale  v.  McMurray,  L.  R.  2  Ch.  App.  790  (1867). 

A.  had  acquired  by  prescription  a  right  to  maintain  an  irrigation  ditch  over 
B.'s  land.  Held,  he  cannot  substitute  an  underground  pipe  of  the  same  ca- 
pacity, even  though  this  would  be  less  of  a  burden  on  the  servient  estate. 
Allen  V.  San  Jose  Land  &  Water  Co.,  92  Cal.  138,  28  Pac.  215,  15  L.  R.  A. 
93  (1891). 


2Q6  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

adjoining  the  first  mentioned  lot  on  the  west,  and  extending  back  fifty- 
eight  feet  from  Chesnut  street,  were  also  the  property  of  the  plaintiff, 
as  well  as  another  lot  in  Third  street,  running  east  fifty  feet  to  the 
small  piece  of  ground,  which  he  retained  out  "of  the  lot  granted  by  him 
to  Conyers,  and  by  Conyers  to  Bioren.  The  Chesnut  street  and  Third 
street  lots  belonging  to  the  plaintiff  were  contiguous ;  the  south  line 
of  the  former,  constituting  part  of  the  north  line  of  the  latter.  Thus 
the  plaintiff  had  access  from  all  the  above  mentioned  lots  to  the  alley 
in  question.  It  was  admitted,  that  the  defendant  had  disturbed  the 
plaintiff  in  the  use  of  the  alley,  and  had  stopped  the  water  course. 

Two  questions  arose:  1.  Whether  the  plaintiff",  notwithstanding  he 
had  parted  with  the  whole  of  the  lot  to  which  the  alley  was  appurtenant, 
except  the  small  piece  of  ground  above  described,  retained  the  privilege 
of  the  said  alley?  2.  Whether  the  plaintiff  had  a  right  of  way  through 
the  alley  to  his  other  lots  ? 

TiivGHMAN,  C.  J.^*  After  having  stated  the  different  deeds,  pro- 
ceeded as  follows:  The  defendant,  who  is  proprietor  of  the  alley, 
contends,  that  the  plaintiff  has  no  rights  to  the  use  of  it,  because  he 
has  parted  with  all  the  lot  to  which  the  right  of  way  was  appurtenant, 
except  the  small  piece  last  mentioned.  It  may  be  remarked  in  the  out- 
set, that  at  all  events,  the  plaintiff  must  recover  in  this  actiqn^j3^^^^ 
the  defendant  has  obstructed  the  water  course,  and  np  argument  what- 
ever has  been  urged  to  show  that  the  right  to  the  water  course  is  lost, 
by  selling  part  of  the  lot.  As  to  the  right  of  way,  the  argument  is,  that 
the  deed  should  be  construed  according  to  the  intent  of  the  parties,  and 
that  it  must  have  been  supposed  by  the  grantor,  that  this  small  lot  con- 
veyed by  Gordon  to  the  plaintiff  (only  ten  feet  wide)  would  have  been 
always  occupied  by  one  person ;  therefore  the  cutting  it  up  into  several 
parcels,  and  giving  a  right  of  passage  to  several  persons,  will  subject 
the  grantor,  and  those  claiming  under  him,  to  greater  inconvenience 
than  was  contemplated.  But  we  are  to  judge  of  the  intentions  by  the 
words  of  the  deed.  When  land  is  conveyed  with  a  right  to  the  grantee, 
his  heirs,  and  assigns,  to  pass  over  other  land,  the  right  is  appurtenant 
to  all  and  every  part  of  the  land  so  conveyed,  and  consequently  every 
person  to  whom  any  part  is  conveyed,"  is  to  enjoy  the  right  of  passage. 
It  must  not  be  supposed,  that  either  party  was  ignorant,  that  the  gran- 
tee had  a  right  to  alien  a  part,  nor  that  it  was  the  intention  (unless 
clearly  expressed)  that  by  such  alienation,  the  right  of  way  should  be 
extinguished.  Now,  if  the  defendant's  argument  is  just,  the  right  of 
way  is  totally  extinguished,  by  an  alienation  of  part  of  the  premises, 
because  it  cannot  be  said  that  the  owner  of  one  part  has  better  right 
than  the  owner  of  the  other,  consequently  as  both  cannot  have  the  right, 
the  whole  is  gone.  We  must  decide  this  case  on  general  principles ; 
the  same  law  that  is  applied  to  a  lot  of  ten  feet  wide  must  be  applied 

-•s  Part  of  the  opiuiou  of  Tilgbraan,  C.  J.,  and  tbe  opinion  of  Teates,  J., 
are  omitted. 


Ch.  2)  EASEMENTS  207 

to  one  of  the  width  of  an  hundred  feet.  And  it  is  obvious,  that  such  a 
principle  cannot  prevail  in  a  city  without  intolerable  grievance,  be- 
cause it  would  force  every  person  who  has  a  right  of  way  to  preserve 
his  property  entire,  in  order  to  preserve  his  passage.  Generally  speak- 
ing, covenants  that  run  with  the  land  extend  to  assignees  of  every  part 
of  the  land.  This  is  the  case  with  covenants  to  warrants,  &c.,  although 
by  multiplying  the  assignees,  the  actions  against  the  covenantor  may 
be  multiplied.  The  defendant  has  produced  no  authorities  distinguish- 
ing this  case  from  the  general  principle.  I  am,  therefore  of  opinion, 
that  the  plaintiff  was  entitled  to  the  use  of  the  alley  in  question,  as 
appurtenant  to  the  ground  retained  by  him.  But  the  plaintiff  has  an- 
other claim.  *  *  *  I  do  not  think  that  the  facts  stated  in  the  rec- 
ord make  it  proper  to  decide  that  point  at  present.  *  *  *  On  the 
whole  I  am  of  opinion,  that  judgment  should  be  entered  for  the  plain- 
tiff. 

Judgment  for  plaintiff.^* 


WHITE  V.  GRAND  HOTEL,  EASTBOURNE,  Limited. 
(Chancery  Division,  1912.     [1913]  L.  R.  1  Ch.  113.) 

Appeal  from  a  decision  of  Joyce,  J. 

This  was  an  action  by  the  owner  in  fee  simple  and  his  tenant  of 
stables  and  mews  and  a  private  road  leading  from  the  mews  to  a  pub- 
lic road  called  Silverdale  Road  at  Eastbourne,  against  the  owners  of 
adjoining  property,  for  an  injunction  to  restrain  them  from  using  the 
private  road  as  a  carriageway  for  the  passage  of  motor  cars  or  other 
vehicles,  and  for  an  order  that  the  defendants  should  rebuild  part  of 
a  wall  which  had  been  pulled  down. 

The  defendants'  premises  formerly  consisted  of  a  private  dwelling- 
house  and  garden  known  as  St.  Vincent  Lodge.  The  only  passage  to 
the  plaintiffs',  mews  was  by  a  lane,  running  into  Silverdale  Road.  In 
1883  the  predecessors  in  title  of  the  plaintiffs  and  defendants  (Mr. 
Peerless  and  Mr.  Ford)  entered  into  an  arrangement  whereby  the  lane 
was  to  be  enlarged  and  Mr.  Ford,  the  owner  of  St.  Vincent  Lodge, 
was  to  have  a  right  of  way  over  it  and  through  a  gateway  nine  feet  in 
width  into  his  premises,  thus  obtaining  a  means  of  access  to  Silver- 
dale  Road.  There  was  no  documentary  evidence  of  this  agreement,  and 
the  question  whether  there  was  any  express  restriction  or  limitation 
upon  the  right  of  way  was  in  dispute.  The  defendants  had  recently  ac- 
quired St.  Vincent  Lodge  and  made  use  of  it  in  connection  with  the 
business  of  their  hotel;  a  covered  yard  between  the  stable  and  the 
house  being  used  as  a  garage  for  motor  cars  belonging  to  visitors  stay- 

i»  Yeates  and  Bradcenridge,  J.T.,  concurred.  Ace:  Newcomen  v.  Coul- 
son,  L.  R.  5-  Ch.  Div.  133  (1877) ;  Underwood  v.  Carney,  1  Cush.  (Mass.)  2S5 
(1848) ;  Lansiu?  v.  Wiswall,  5  Denio  (N.  Y.)  213  (1S4S) ;  see  Dawson  v.  St. 
Paul  Fire  &  Marine  Ins.  Co.,  15  Minn.  136  (Gil.  102),  2  Am.  Rep.  109  (1870). 


208'  RIGHTS   IN  THE   LAND  OF  ANOTHER  (Part  2 

ing  at  the  hotel,  and  the  drivers  being  lodged  in  St.  Vincent  Lodge  it- 
self. These  drivers  were  in  the  habit  of  using  the  right  of  way,  and 
the  defendants  altered  the  gateway  to  facilitate  their  passage.  The 
plaintiffs  brought  this  action ;  a  good  deal  of  evidence  was  adduced  and 
several  questions  argued,  but  the  only  point  which  calls  for  a  report  is 
the  first  question,  namely,  whether  the  use  of  the  right  of  way  must 
be  restricted  so  as  no  longer  to  enure  for  the  benefit  of  the  owners  of 
St.  Vincent  Lodge  and  its  stables  unless  the  same  continued  to  be  used 
and  occupied  precisely  as  they  were  in  1883,  when  the  agreement' was 
made,  that  is  to  say,  as  a  private  dwelling  house.  On  this  point  Joyce 
J.  said  "a  great  many  authorities  were  cited  before  me,  not  all  quite 
consistent,  but  the  result  of  the  argument  is  that  in  my  opinion  the  au- 
thorities cited  at  pages  90  and  91  of  Theobald's  Law  of  Land  do  sup- 
port the  proposition  there  stated,  namely:  'Where  there  is  an  express 
grant  of  a  right  of  way  to  a  particular  place  to  the  unrestricted  use  of 
which  the  grantee  of  the  right  of  way  is  entitled,  the  grant  is  not  to 
be  restricted  to  access  to  the  land  for  the  purposes  for  which  access 
would  be  required  at  the  time  of  the  grant.'  Then  all  the  cases  are 
there  cited,  and  in  my  opinion  that  statement  is  correct  and  I  think 
the  law  is  so  settled  *  in  other  words  I  hold  that  the  defendants  had  an 
unrestricted  right  of  way  to  or  from  the  gateway  nine  feet  wide  in  the 
new  wall  as  erected  by  Ford  and  that  nothing  has  happened  to  deter- 
mine such  right  of  way."  His  Lordship  accordingly  dismissed  the  ac- 
tion. 

The  plaintiffs  appealed. 

CozEns-Hardy,  M.  R.""  This  is  an  action  in  which  the  plaintiffs- 
claim  an  injunction  to  restrain  the  defendants  from  using  and  enjoying 
a  right  of  way,  which  I  shall  have  more  particularly  to  deal  with.  The 
plaintiffs'  main  point  was  this :  They  said  that  the  right  of  way,  which 
was  granted  under  circumstances  which  I  shall  state  hereafter,  was  lim- 
ited in  its  nature ;  that  it  was  only  a  right  of  way  for  what  I  may  call 
domestic  purposes  as  distinct  from  trade  purposes;  and  that  it  was 
only  for  such  use  as  could  reasonably  be  expected  to  be  in  tlie  contem- 
plation of  the  parties  at  the  time  when  the  defendants'  house,  St.  Vin- 
cent Lodge,  was  a  private  residence,  and  ought  not  to  be  altered  now 
that  St.  Vincent  Lodge  is  turned  into  a  garage.  We  heard  that  point 
fully  argued  by  counsel  for  the  appellants  and  we  have  come  to  the 
conclusion  that  there  is  no  ground  for  limiting  the  right  of  way  in  the 
manner  suggested.  It  is  not  a  right  of  way  claimed  by  prescription. 
It  is  a  right  of  way  claimed  under  a  grant,  and,  that  being  so,  the  only 
thing  that  the  Court  has  to  do  is  to  construe  the  grant;  and  unless 
there  is  some  limitation  to  be  found  in  the  grant,  in  the  nature  of  the 
width  of  the  road  or  something  of  that  kind,  full  effect  must  be  given 
to  the  grant,  and  we  cannot  consider  the  subsequent  user  as  in  any  way 
sufficient  to  cut  down  the  generality  of  the  grant. 

2  0  The  opinions  of  Farwell  and  Hamilton,  Lords  Justices,  are  omitted. 


Ch.  2)  EASEMENTS  209 

I  do  not  propose  to  go  into  the  authorities,  many  of  which  were  cited 
to  us.  I  think  that  the  law  is  spttled  clearly  and  conclusively  by  the 
decision  of  the  Court  of  Appeal  in  United  Land  Co.  v.  Great  Eastern 
Ry.  Co.,  L.  R.  10  Ch.  586.  I,  therefore,  do  not  differ  in  any  way  from 
the  view  taken  by  Joyce,  J.,  that  the  right  of  way  is  not  to  be  restricted 
to  access  to  the  land  merely  for  such  uses  as  were  reasonably  re- 
qtu'red  at  the  date  of  the  grant.    So  far  this  attion,  I  think,  fails.-^ 

[His  Lordship  then  considered  the  facts  of  the  case  and  held  that  the 
defendants  had  no  right  to  any  access  except  through  a  gate  in  the  posi- 
tion of  the  nine-foot  gate  which  formerly  stood  there,  and  that  the 
plaintiffs  were  entitled  to  an  injunction  to  restrain  them  from  exer- 
cising a  right  of  way  through  a  new  and  wider  gate  recently  erected.] 


WOOD  V.  SAUNDERS. 
(Court  of  Chancery,  1875.     23   Weekly   Rep.   514.)  m 

[One  L.  B.  Knight-Bruce,  owner  in  fee  of  a  large  tract  of  land,  made 
an  agreement  in  writing  with  defendant  whereby  the  latter  was  to  erect 
various  mansion  houses  upon  the  said  land,  and  leases  of  the  said 
houses  were  to  be  granted  to  the  defendant.  Later,  by  an  indenture 
of  lease  dated  June  9,  1870,  L.  B.  Knight-Bruce  and  the  defendant  leas- 
ed to  the  plaintiff  one  of  the  mansion  houses,  known  as  the  Priory,  and 
two  acres  of  land,  for  a  term  of  two  years  from  December  25,  1869. J 

The  description  of  the  parcels  was  followed  by  these  words :  "To- 
gether with  the  free  passage  and  running  of  water  and  soil  in  and  to 
the  existing  cesspool,  and  in  and  through  all  the  drains,  sewers,  and 
water  courses  now  constructed,  or  hereafter  to  be  constructed,  through 
the  adjoining  property  of  the  said  L.  B.  Knight  Bruce,  his  heirs  or  as- 
signs." The  lease  contained  a  covenant  by  the  plaintiff  not  to  use  the 
premises  for  any  trade  or  business,  or  for  any  purpose  or  in  any  way 
which  might  be,  or  grow  to  be,  a  nuisance  to  the  said  L.  B.  Knight 
Bruce  or  his  tenants,  and  not  without  the  consent  of  the  said  L.  B. 
Knight  Bruce  to  erect  any  walls,  building,  or  erection  whatever,  upon 
the  demised  premises,  or  alter  the  elevation  thereof ;  also  a  proviso 
that  the  plaintiff  should  have  an  option  of  purchasing  the  fee  simple  of 

21  Ace:  Parson  v.  New  York,  N.  H.  &  H.  R  Co.,  216  Mass.  269,  103  N. 
E.  693  (1913) ;  Kretz  v.  Fireproof  Storage  Co.,  127  Minn.  304,  149  N.  W.  648, 
955  (1914) ;  Arnold  v.  Fee,  148  N.  Y.  214,  42  N.  E.  588  (1896). 

See  United  Land  Company  v.  Great  Eastern  Ry.  Co.,  L.  R.  10  Cti.  App. 
586  (1875). 

A  way  of  necessity  is  only  for  the  purpose  of  the  dominant  piece  in  the 
condition  in  which  it  was  at  the  time  of  the  creation  of  the  easement.  Lon- 
don V.  Riggs,  L.  R.  13  Ch.  Div.  798  (1880),  implied  reservation;  compare 
Serff  V.  Acton,  L.  R.  31  Ch.  Div.  679  (1886).  Contra:  Myers  v.  Dunn,  49 
Conn.  71  (1881),  implied  grant;  Whittier  v.  Winkley,  62  N.  H.  338  (1882). 

2  2  The  case  is  also  reported  in  L.  R.  10  Ch.  582. 

BiG.RlGHTS — 14 


210  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

the  demised  premises  for  i  10,000,  on  giving  three  calendar  months'  no- 
tice in  writing  of  his  desire  to  do  so. 

The  plaintiff  gave  due  notice  of  his  desire  to  purchase,  and  by  an 
indenture  dated  the  21st  day  of  May,  1872,  h.  B.  Knight  Bruce  con- 
veyed the  fee  simple  to  him  accordingly  in  consideration  of  £10,000. 

The  conveyance  granted  a  right  of  drainage  in  precisely  the  same 
words  as  were  used  in  the  lease,  and  contained  the  usual  general  words, 
"together  with  all  buildings,  yards,  gardens,  trees,  fences,  hedges,  ditch- 
es, ways,  sewers,  drains,  water  courses,  liberties,  privileges,  easements, 
and  appurtenances  whatsoever  to  the  said  messuage  and  premises  be- 
longing, or  in  any  wise  appertaining,  or  then  or  usually  occupied  or  en- 
joyed therewith,  or  reputed  as  appurtenant  thereto." 

It  appeared  that  the  object  of  the  plaintiff  (who  was  a  physician)  in 
acquiring  the  property  was  to  use  it  as  a  private  lunatic  asylum.  After 
the  plaintiff  had  declared  his  option  to  purchase,  but  before  the  prop- 
erty was  conveyed  to  him,  he  stated  his  desire  to  make  additions  to  the 
house,  and  requested  a  license  from  the  lessor,  L.  B.  Knight  Bruce,  in 
order  to  enable  him  to  proceed  to  build  immediately ;  and  although  no 
license  was  given  the  alterations  and  additions  were  partially  completed 
before  the  date  of  the  conveyance.  The  premises,  as  altered,  afforded 
accommodation  for  a  large  number  of  patients,  and  it  was  admitted 
by  the  plaintiff  that  from  ninety  to  a  hundred  persons  were  usually 
resident  therein.  In  consequence  of  this  fact  there  was  a  greatly  aug- 
mented user  of  the  right  of  drainage  conferred  by  the  lease  and  the 
conveyance. 

[The  defendant  threatened  to  cut  the  drain,  and  the  plaintiff,  brought 
this  bill  for  an  injunction.] 

Hall,  V.  C.^^  The  important  question  for  me  to  determine  in  this 
ca?e  is  the  construction  of  the  grant  which  is  contained  in  the  lease ; 
for  it  has  been  admitted  by  the  plaintiff  at  the  bar  that  the  conveyance 
is  to  be  construed  as  conveying  exactly  what  was  given  by  the  lease 
and  nothing  more ;  and  I  think  that  it  was  a  very  fair,  and  reasonable, 
as  well  as  a  sound  way  of  putting  the  case,  to  admit  that  the  plaintiff's 
right  as  grantee  under  the  conveyance  could  not  be  carried  farther  than 
his  right  as  it  existed  as  lessee.     *     *     * 

That  being  so,  the  next  question  is.  What  is  the  extent  of  the  ease- 
ment vrhich  is  granted  ?  and  for  the  purpose  of  determining  that,  I  do 
not  think  it  is  proper  to  stop  at  the  point  in  the  deed  where  I  have 
already  read  to ;  but  I  think  tliat  you  must  go  through  the  deed  and 
examine  its  further  provisions,  so  as  to  ascertain,  by  a  perusal  and  con- 
sideration of  the  whole  of  the  instrument,  the  way  in  which  the  par- 
ties contemplq,ted  that  the  property  in  question  would  be  used  and  en- 
joyed. It  is  not  necessary  for  me  to  state  the  different  provisions  in 
detail,  but  suffice  it  to  say  that  it  is  clearly  stipulated  that  the  property 
shall  remain  in  the  same  state  and  condition  as  it  was  at  the  time  when 

23  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Ch.  2)  EASEMENTS  211 

the  lease  was  made.  No  building  was  to  be  erected  upon  the  property, 
and  the  elevation  of  the  mansion  house  was  not  to  be  altered  without 
license  from  the  lessor.  Therefore,  the  substantial  thing  was  the  pres- 
ervation of  the  property  in  its  then  existing  state,  subject  to  any  altera- 
tions being  made  in  it  with  the  consent  of  tlie  lessor.  The  lessor's  con- 
sent was  never  given  to  any  alteration  whatever.  If  it  had  been  given, 
it  might  have  been  qualified  with  reference  to  its  effect  on  the  right  of 
passage  of  water.  It  might  or  it  might  not;  but  no  license  was  ever^ 
given,  and  therefore  I  must  take  it  that  when  this  property  was  con- 
veyed and  taken  under  the  option  matters  stood  exactly  as  they  were, 
and  tliat  there  was  no  existing  right  of  user  of  the  easement  of  free 
passage  of  soil  and  water  other  than  that  which  existed  immediately 
after  the  lease  itself  was  made,  whatever  that  may  be.  Now  the  right 
which  existed  at  the  time  of  the  lease  being  made  was  not  an  unre- 
stricted general  right  in  respect  of  this  house  and  nine  acres  of  land. 
It  was  a  right  attaching  to  this  house  and  land  subject  to  this,  that 
they  could  only  be  enjoyed  in  a  limited  and  special  and  peculiar  man- 
ner. Therefore,  there  was  no  grant  of  right  of  passage  of  water  and 
soil  in  respect  of  any  buildings  which  might  thereafter  be  erected,  but 
only  a  right  in  respect  to  the  actual  building  as  it  stood  and  existed  at 
the  time  the  lease  was  made,  and  from  what  I  have  already  said  it  was 
consequently  that  right  only  which  passed  by  the  conveyance. 

It  was  said,  however,  that  consistently  with  the  authority,  the  grant 
ought  to  be  measured  with  reference  to  the  size  of  pipes,  and  not  with 
reference  to  the  size  of  the  building.  I  do  not  know  of  any  authority 
for  any  such  proposition.  I  am  not  aware  that  in  construing  a  grant  of 
a  right  of  way  or  road  (which  I  do  not  know  how  you  can,  for  this  pur- 
pose, distinguish  from  a  grant  of  a  right  of  water  course),  and  in  as- 
certaining the  extent  of  the  right  to  a  user  of  that  road  when  there 
has  been  an  alteration  in  the  property  in  respect  of  which  it  was  grant- 
ed, you  are  to  consider  that  the  grant  extends  to  the  altered  state  of 
circumstances,  simply  because  there  is  plenty  of  room  to  allow  per- 
sons to  go  along  the  road. 

As  I  understand  it,  you  must  measure  the  right  by  the  existence  of 
the  thing  which  is  to  have  the  use  of  the  right,  and  I  adopt  for  that  pur- 
pose what  is  stated  by  Mr.  Justice  Willes  in  the  case  of  WilHams  v. 
James,  15  W.  R.  928,  L.  R.  2  C.  P.  577,  which  has  been  referred  to. 
Mr.  Justice  Willes  there  says,  "The  use  must  be  the  reasonable  use 
for  the  purpose  of  the  land  in  the  condition  in  which  it  was  while  the 
user  took  place."  I  consider,  therefore,  that  the  user  here  must  be  a 
user  consistent  with  the  use  of  the  mansion  as  a  mansion  in  the  state 
and  condition  in  which  it  was  at  the  time  the  grant  was  made.  I  do 
not  mean  to  say  that  any  small  alterations  which  might  be  made  in  the 
buildings,  such  as  the  addition  of  a  single  water-closet,  or  anything  else 
in  the  nature  of  a  small  adglition  to  the  house — even  were  it  the  building 
of  another  room — would  effect  the  right.  You  must  look  at  it  in  a  rea- 
sonable point  of  view;   you  must  not,  as  Mr.  Justice  Willes  says,  be 


212  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

splitting  straws  upon  these  questions,  but  you  must  take  it  in  a  rea- 
sonable point  of  view ;  and  taking  it  in  a  reasonable  point  of  view,  you 
have  here  a  case  where  there  has  been  accommodation  added  to  this 
house  so  as  to  render  it  capable  of  being  used  as  a  lunatic  asylum  for 
a  hundred  or  more  inmates,  instead  of  as  a  private  dwelling  house. 
For  this  purpose  it  is  just  as  if  it  were  a  user  for  a  manufactory,  ex- 
cept that  the  character  of  the  manufacture  might  be  such  as  to  make 
the  quantity  of  soil  and  water  or  other  matter  much  larger  than  it  is 
at  present.  But  upon  the  evidence  here  it  is  clear  that  there  has  been 
a  very  large  increase  indeed  to  the  quantity  of  water  and  soil  which 
has  been  passed  through  these  drains  down  into  the  moat  or  ditch. 

Another  suggestion  of  Mr.  Lindley's  was  that  the  true  measure  might 
be  taken  to  be  the  quantity  which  the  moat  or  ditch  itself  would  con- 
tain. That  view  seems  to  me  to  be  entirely  without  any  authority  to 
support  it,  and  might  raise  very  awkward  questions  indeed  as  to  the 
quantity  of  water  and  sewage  which  the  grantor  himself  was  still  en- 
titled to  put  in,  and  as  to  how  the  rights  of  the  parties  should  be  ad-. 
justed  in  case  of  a  dispute  as  to  the  quantity  which  each  was  to  put  in. 
The  same  question  no  doubt  to  a  certain  extent  might  arise  under  the 
view  which  I  take,  because  even  the  limited  user  might  be  forestalled 
by  the  grantor  sending  in  such  a  quantity  from  his  own  premises  as 
not  to  leave  sufficient  space  for  what  might  come  from  the  grantee's 
premises.  But  an  unlimited  right,  or  some  greater  right  than  a  right 
limited  to  the  mansion,  would  be  much  more  likely  to  create  difficul- 
ties, and  would  have  been  much  more  likely  to  have  been  made  the  sub- 
ject of  special  provision,  if  there  had  been  any  intention  to  grant  it, 
than  a  mere  limited  right  of  passage  of  water  and  soil  from  a  private 
dwelling  house,  the  quantity  of  which  both  parties  might  well  conceive 
would  be  really  not  of  much  importance  in  reference  to  the  use  of  the 
moat  or  ditch.  Therefore,  I  consider  that  that  argument  is  not  ten- 
able.    *     *     * 

The  order  made  was  as  follows :  "Order  that  an  injunction  be  award- 
ed to  restrain  the  defendant,  his  servants  and  workmen,  from  cutting 
off  or  stopping  up  the  drains  in  the  bill  mentioned,  or  in  any  way  pre- 
venting the  free  passage  and  running  of  water  and  soil  in  and  to  the 
existing  cesspool  in  the  bill  mentioned,  such  cesspool  being  in  the  judg- 
ment of  the  court  the  moat  or  ditch  in  the  bill  mentioned,  but  this  or- 
der is  only  to  protect  the  plaintiff  in  the  reasonable  use  of  such  cess- 
pool having  regard  to  the  extent  to  which  the  same  was  being  used 
prior  to  the  date  of  the  lease."  ^* 

24  See  Elser  v.  Village  of  Gross  Point.  223  111.  230,  79  N.  E.  27,  114  Am. 
St  Rep.  326  (1906). 


Ch.  2)  EASEMENTS  213 


GRAY  et  al.  v.  CITY  OF  CAMBRIDGE. 

(Supreme  Judicial  Court  of  Massachusetts,  1905.     189  Mass.  405,  76  N.   K. 
195,  2  L.  R.  A.  [N.  S.]  976.) 

[This  is  a  bill  in  equity  by  the  executor  of  Edward  W.  Hooper  to 
enjoin  the  defendant  from  causing-  or  allowing  water  to  run  thru  cer- 
tain pipes  laid  in  Hooper's  land  under  a  grant  from  one  Stearns,  Hoop- 
er's predecessor  in  title. 

In  1865  Stearns,  the  then  owner  of  the  land  in  question,  granted  in 
fee  to  the  defendant  "the  right  to  enter  upon  a  strip  of  land  fifteen  feet 
wide,  situate  in  said  Cambridge,  and  lying  between  Reservoir  Street 
and  the  land  of  Josiah  Coolidge  for  the  purpose  of  laying  one  or  more 
water  pipes  for  conveying  water  from  Fresh  Pond  to  the, city  reser- 
voirs on  said  street  and  of  examining,  repairing,  and  relaying  the  same 
whenever  necessary."  The  plan  at  that, time  was  to  pump  the  water 
from  Fresh  Pond  thru  pipes  laid  in  the  strip  in  question  to  the  city  res- 
ervoirs mentioned  and  thence  to  distribute  it  by  gravity  to  various 
parts  of  the  city.  In  pursuance  of  this  plan,  a  twelve  inch  pipe  was 
first  laid  in  the  strip  from  the  pond  to  the  reservoir;  later  this  was 
taken  up,  and  a  twenty-four  inch  pipe  was  substituted.  Several  years 
later  a  second,  a  thirty  inch  supply  pipe,  was  laid,  and  still  later  a  third 
twelve  inch  pipe.  Contemporaneously  with  the  laying  of  the  thirty 
inch  pipe  and  the  twelve  inch  pipe,  the  city  altered~  its  plans  and  in  the 
next  ten  years  gradually  changed  the  use  of  the  pipes  in  the  strip  in 
question  so  that  instead  of  pumping  the  water  to  the  reservoir,  the  city 
pumped  the  water  thru  these  pipes  under  greater  pressure  into  other 
pipes  connecting  with  them  in  the  vicinity  of  the  reservoir  and  so  di- 
rectly to  the  consumers.  In  1896  a  new  reservoir  was  built  on  a  dif- 
ferent site,  the  old  reservoir  razed  and  the  land  whereon  it  stood  sold. 
The  pipes  in  question  were  thereafter  used  solely  as  distributing  mains 
in  connection  with  the  new  reservoir  system.] 

LoRiNG,  J.^^  We  are  of  opinion,  first,  that  the  master's  construc- 
tion of  the  Stearns  grant  in  the  main  is  correct ;  and,  second,  that  pipes 
laid  under  this  grant  can  be  used  as  supply  pipes  only  and  cannot  be 
used  as  distribution  pipes.  What  are  the  terms  of  the  grant?  They 
are  (1)  "to  enter  upon  a  strip  of  land  fifteen  feet  wide,"  which  strip 
of  land  is  (2)  "situated  in  said  Cambridge,  and  lying  between  Reser- 
voir street  and  land  of  Josiah  Coolidge,"  (3)  "for  the  purpose  of  lay- 
ing one  or  more  pipes,"  which  pipes  are  to  be  used  (4)  "for  conveying 
water  from  Fresh  Pond  to  the  city  reservoirs  on  said  street  [Reser- 
voir street],"  and  (5)  "of  examining,  repairing,  and  relaying  the  same 
whenever  necessary."  The  question  comes  down  to  this :  For  what 
purpose  were  the  words  inserted  "for  conveying  water  from  Fresh 
Pond  to  the  city  reservoirs  on  said  street?"  and  what  effect  is  to  bs 
given  to  them?    They  were  not  inserted  to  describe  the  termini  of  thf> 

2  5  The  statement  of  facts  rewritten  and  part  of  the  opinion  is  omitted. 


214  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

15-foot  Strip.  That  was  fully  stated  elsewhere.  There  is  the  previous 
description  of  the  15-foot  strip  as  "lying  between  Reservoir  street  and 
land  of  Josiah  Coolidge,"  and  the  subsequent  delineation  of  it  in  the 
plan  referred  to  in  the  deed.  Moreover,  as  a  description  of  the  ter- 
minus ad  quern  it  is  inaccurate,  M'r.  Stearns'  ownership  extended  only 
to  Reservoir  street.  It  did  not  extend  across  the  street  to  the  reser- 
voir. 

In  the  second  place,  these  words  were  not  inserted  to  state  the  use 
to  be  made  of  the  15-foot  strip.  That  is  stated  by  the  words  immedi- 
ately preceding  the  clause  in  question,  to  wit,  "for  the  purpose  of  lay- 
ing one  or  more  water  pipes"  in  it,  the  15-foot  strip.  We  see  no  es- 
cape from  the  conclusion  that  these  words  were  inserted  as  a  descrip- 
tion of  the  use  to  be  made  of  the  pipes  to  be  laid  in  the  strip.  That 
use  is  "for  conveying  water  from  Fresh  Pond  to  the  city  reservoirs 
on  said  street" ;  that  is  to  say,  these  pipes  are  not  for  general  use  in  the 
water  system  of  the  city,  but  for  the  narrower  use  of  conveying  water 
from  the  supply  to  the  reservoir,  which  is  the  initial  point  of  distri- 
bution. Pipes  which  are  to  convey  water  from,  the  source  of  supply  on 
a  low  level  to  a  reser\'oir  on  a  higher  level,  which  reservoir  includes  a 
standpipe  to  enable  the  water  to  reach  houses  higher  than  the  level  of 
the  reservoir,  for  convenience  may  be  termed,  as  they  have  been  term- 
ed in  this  opinion,  supply  pipes.  Those  which  take  the  water  from  the 
reservoir,  including  the  standpipe  as  part  of  the  reservoir,  are  or  may 
be  termed  distributing  pipes.  The  limitation  "for  conveying  water 
from  Fresh  Pond  to  the  city  reservoirs"  is,  in  effect,  a  provision  that 
the  "water  pipes"  to  be  laid  in  the  15-foot  strip  are  to  be  used  as  supply 
pipes,  thereby  excluding  their  being  used  as  distributing  pipes  as  they 
are  now  exclusively  used. 

The  defendant  city  in  effect  claims  that,  in  spite  of  the  words  "for 
conveying  water  from  Fresh  Pond  to  the  city  reservoirs  on  said  street," 
it  can  use  these  pipes  for  any  purpose  in  the  water  system  of  the  city, 
that  the  reservoir  was  a  mere  resting  place  for  the  water  on  its  way 
from  the  supply  to  the  consumer,  and  the  pipes  can  be  used  to  convey 
water  to  the  consumer.  So  far  as  we  can  see,  no  eft'ect  is  given  to 
those  words  if  that  construction  is  adopted ;  and,  unless  we  can  read 
the  words  "for  the  purpose  of  conveying  water  from  Fresh  Pond  to  the 
city  reservoirs"  on  Reservoir  street  to  mean  or  to  include  "for  the 
purpose  of  conveying  water  from  the  city  reservoirs,  wherever  situat- 
ed, to  the  consumers,"  the  use  now  made  is  not  covered  by  the  grant. 
In  our  opinion  the  words  cannot  be  so  read.  The  explanation  of  the 
whole  matter  seems  to  be  found  in  a  suggestion  of  the  plaintiffs'  coun- 
sel that  ordinarily  distribution  mains  are  laid  in  public  streets  and  in 
public  streets  only.  The  unexpected,  however,  turns  out  to  be  the 
event  in  the  case  at  bar,  and  it  has  become  convenient  now  for  the  city 
to  utilize  these  supply  pipes  as  a  link  in  the  distribution  system  starting 
from  the  new  reservoir.  This  remote  contingency  did  not  occur  to  the 
city  when  it  made  its  bargain  with  Mr.  Stearns  in  1866,  and  by  the 


Ch.  2)  BASEMENTS  215 

terms  of  what  was  then  agreed  upon  as  the  trade  struck  between  them 
such  a  use  was  not  included.    *    *    * 

Finally,  the  defendant  argues  that,  if  the  grantor  had  intended  that 
the  easement  should  cease  in  case  the  city  ceased  to  use  the  reservoir, 
it  should  have  said  so.  But  in  that  event  the  easement  did  not  cease 
unless  it  was  made  appurtenant  to  the  land  on  which  the  reservoir  was 
built,  upon  which  we  do  not  find  it  necessary  to  express  an  opinion. 
The  easement  continues  in  legal  contemplation,  to  wit,  the  easement  to 
maintain  pipes  in  the  15-foot  strip  for  the  purpose  of  conveying  water 
from  Fresh  Pond,  to  the  reservoir.  So  long  as  the  defendant  has  no 
reservoir,  nothing  can  be  done  under  the  easement,  but  the  easement 
continues.  The  city  may  hereafter  erect  a  new  reservoir  on  the  same 
site.  Whether  the  city  can  continue  the  pipes  after  razing  the  reser-. 
voir  to  the  ground  under  this  continuing  easement  is  another  mat- 
ter.   *    *    * 

There  must  be  a  decree  for  the  plaintiffs  on  terms  to  be  settled  by  a 
single  justice.  The  interests  of  the  public  are  concerned  in  the  peremp- 
tory shutting  off  of  the  water  asked  for  by  the  plaintiffs.  Subject  to 
such  modification  as  may  be  called  for  by  those  public  interests,  the 
plaintiffs  are  entitled  to  a  decree,  with  costs  in  accordance  with  the 
prayer  of  their  bill. 

So  ordered.^^ 


2SA.,  through  whose  land  ran  a  creek,  granted  to  B.  the  right  to  erect 
and  maintain  a  darn  and  ditch  in  A  's  land  and  draw  water  thence  to  B.'s 
land  for  the  purpose  of  irrigating  B.'s  meadow.  B.  built  the  dam  and  ditch, 
but  used  the  water  for  the  purpose  of  watering  his  stock  as  well  as  irrigat- 
ing. He  kept  this  up  for  over  twenty  years.  Held,  he  has,  as  against  A.'s 
successor  in  title,  the  right  to  use  the  water  for  both  purposes.  Wheatley 
V.  Chrisman,  24  Pa.  298,  64  Am.  Dec.  657   (1855). 

See  Colchester  v.  Roterts,  4  M.  &  W.  769  (1839);  Northam  v.  Hurley,  1  E. 
&  B.  665  (185.3) ;  Rolens  v.  City  of  Hutchinson,  83  Kan.  618,  112  Pac.  129 
(1910);  Cheney  r.  Pease,  99  Slass.  448   (1868). 

On  the  25th  day  of  June,  ISll,  one  Peter  Townsend  and  wife,  in  considei-a- 
tion  of  the  sum  of  five  dollars,  to  them  in  haiMl  paid,  conveyed  to  one  Heury 
McFarlan  ''all  the  right  or  privilege  of  using  or  drawing  off  the  water  from 
a  certain  pond  called  'Mt.  Bashan  Pond,'  situate  in  the  town  of  Monroe,  in 
the  county  of  Orange,  near  a  gristmill  and  nail  manufactory  of  the  said 
Henry  McFarlan  and  others,  called  the  'Monroe  Works,'  for  the  purpose  of 
carrying  on  the  said  works,  in  such  quantity  as  v.ould  be  sufficient  for  carry- 
ing on  and  working  the  furnace,  situate  between  said  nail  manufactory  and 
the  said  pond,  called  'Southfield  Furnace,'  occupied  and  owned  by  the  said 
Peter  Townsend  and  others,  and  for  which  purpose  said  water  is  now  used, 
and  no  further  or  greater  quantity:  Provided,  always,  that  the  right  so 
as  aforesaid  granted  to  the  said  Henry  McFarlan,  his  heirs  and  assigns,  of 
drawing  off  said  water  as  aforesaid,  shall  cease  at  all  times  whenever  said 
furnace,  called  the  'Southfield  Furnace,'  is  in  blast  or  making  iron."  The 
plaintiff  had  succeeded  to  the  right  of  McFarlan,  and  the  defendant  to  the 
right  of  Townsend.  The  nail  factory  was  destroyed  by  tire  in  the  vicinity 
of  oO  years  ago,  and  had  never  been  rebuilt;  the  gristmill  was  converted  into 
a  basket  factory,  which  afterwards  gave  place  to  a  shoddy  mill,  and  then 
to  a  manufactory  of  wooden  articles,  which  business  was  still  conducted 
therein.  Held,  the  plaintiff  is  entitled  to  continue  to  use  the  amount  of 
water  specitied  in  the  deed  of  1811.  Hall  v.  Sterling  Iron  &  Rv.  Co.,  14S  N. 
Y.  432,  42  N.  E.  1056  (ISDGj.    Ace. :    Suttrel's  Case,  4  Co.  S6a  (1601) ;    Garland 


216  RIGHTS   IN  THE  LAND  OF   ANOTHER  (Part  2 

EDGETT  V.  DOUGLASS. 

(Supreme   Court  of  Pennsylvania,   1891.     144   Pa.  95,   22   Atl.  868.) 

On  June  14,  1889,  A.  J.  Edgett  filed  a  bill  in  equity  against  C.  L. 
Douglass,  charging  in  substance  (1)  that  the  defendant,  without  any  au- 
thority, had  entered  upon  a  tract  of  seven  acres  owned  by  the  plaintiff, 
for  the  purpose  of  constructing  a  dam  to  restrain  the  flow  of  Tunung- 
want  creek  and  divert  it  from  its  natural  course,  and  threatened  to  con- 
tinue lo  make  such  entries ;  and  (2)  that  the  defendant  was  construc- 
ing  a  dam  below  the  plaintiff's  property  in  such  manner  as  to  overflow, 
not  only  said  seven  acres,  but  also  another  tract  of  the  plaintiff'  con- 
taining thirty  acres,  to  the  plaintiff's  irreparable  damage ;  praying  that 
the  defendant  be  enjoined  from  entering  on  the  seven  acres  for  the  pur- 
pose of  changing  or  diverting  the  channels  of  said  creek,  and  from 
maintaining  said  dam  "other  than  it  now  is;"  and  for  general  re- 
lief.    *     *     * 

The  dam  mentioned  in  the  pleadings  was  built  in  1844  by  W.  R. 
Fisher,  and  from  that  time  until  the  purchase  by  the  defendant  of  the 
gristmill  and  water  rights  mentioned  below,  was  maintained  substan- 
tially in  the  same  condition  as  when  first  erected.  From  1844  to  1866 
Fisher  owned  the  dam,  and  the  land  on  each  side  thereof.  There  were 
erected  prior  to  1866,  on  land  owned  by  Fisher,  a  sawmill,  situated  on 
the  west  side  of  the  creek,  and  a  gristmill  situated  on  the  opposite  side. 
Both  were  supplied  with  water  from  said  dam.  In  1866,  Fisher  con- 
veyed to  Henrietta  Peterson  a  parcel  of  land  upon  which  the  sawmill 
stood,  and  also  the  seven  acres  now  owned  by  the  plaintiff,  the  deed 
containing  the  following  reservation : 

"Reserving,  however,  to  the  party  of  the  first  part  sufficient  water  to 
run  a  gristmill  on  the  same  milldam,  and  the  right  at  all  times  to  main- 
tain a  dam  across  the  Tunungwant  creek  where  the  dam  now  is,  and 
the  right  to  flow  the  land  hereby  conveyed  so  far  as  may  be  necessary 
for  the  use  of  the  water,  privilege."     *     *     * 

The  plaintiff's  title  to  the  seven  acres  was  derived,  through  inter- 
mediate conveyances,  from  Henrietta  Peterson.  The  defendant  owned 
at  the  time  of  the  hearing  the  Fisher  gristmill,  and  had  succeeded  by 
grant  to  all  the  rights  which  Fisher  had  in  the  mill  property,  dam,  wa- 

V.  Hodsdon,  46  Me.  511  (1859) ;    Adams  v.  Warner,  23  Vt.  395  (1851) ;   see  Co- 
burn  V.  Middlesex  Co.,  142  Mass.  264,  7  N.  E.  849  (1886). 

A.,  being  the  owner  of  a  tract  of  riparian  land  and  a  water  power,  grant- 
ed to  B.  in  fee  a  part  of  the  land  with,  "the  privilege  of  building  a  fulling 
mill,  together  with  the  privilege  of  drawing  water  from  Long  Pond  [the 
source  of  the  power],  so  much  as  shall  be  necessary  to  carry  a  well-built 
overshot  fulling  mill  at  any  time  when  he,  the  said  B.,  shall  have  occasion 
to  use  his  said  fulling  mill."  B.  built  his  fulling  mill;  it  subsequently 
burned,  and  later  an  oil  mill  was  erected  on  the  same  site  by  B.'s  successor 
in  title,  who  attempted  to  use  the  same  amount  of  power  for  his  oil  mill. 
Held,  he  is  not  entitled  to  use  the  water  power  for  the  oil  mill.  Strong  v. 
Benedict,  5  Conn.  210  (1824).  Acc:  Clement  v.  Gould.  61  Vt.  573,  18  Atl. 
453  (1889).    Compare  Woodring  v.  Hollenbach,  202  Pa.  65,  51  Atl.  318  (1902). 


Ch.  2)  EASEMENTS  217 

ter  privilege  and  appurtenances,  the  same  having  been  conveyed  to  him 
by  deed  of  Fisher  and  wife,  dated  July  27,  1886. 

As  originally  built,  the  dam  in  question  extended  across  Tunung- 
want  creek.  The  breal<,  which  the  defendant  was  claiming  the  right 
to  repair,  was  up  the  stream  from  the  dam  and  about  150  feet  above 
it,  and  with  the  exception  of  about  three  feet,  was  wholly  on  the  tract 
of  seven  acres  belonging  to  the  plaintiff.  It  was  contended  by  the  de- 
fendant that,  soon  after  the  construction  of  the  dam  in  1844,  a  dyke 
extending  along  the  stream  from  the  dam  to  a  point  beyond  the  break, 
was  built  for  the  purpose. of  restraining  the  water  from  flowing  over  a 
portion  of  the  seven  acres  and  of  thus  increasing  the  height  of  the  wa- 
ter in  the  dam,  and  it  was  a  break  in  tliis  dyke  the  defendant  was  seek- 
ing to  repair.     *     *     *  27 

Paxson,  C.  J.  This  case  involves  some  questions  of  fact  which 
could  have  been  more  appropriately  settled  at  law.  Indeed,  had  this 
point  been  made  below,  we  would  have  been  inclined  to  sustain  it.  But 
where  parties  submit  to  the  jurisdiction,  and  take  their  chances  of  a 
decree  in  their  favor,  the  objection  here  comes  with  a  bad  grace,  and 
will  not,  as  a  general  rule,  avail,  unless  the  want  of  jurisdiction  is  so 
plain  that  we  would  feel  justified  in  dismissing  the  bill  of  our  motion. 
Aside  from  this,  in  the  view  we  take  of  the  case,  the  disputed  facts  are 
not  of  special  importance,  as  it  turns  in  a  great  measure  upon  the  prop- 
er construction  of  the  reservation  in  the  deed  of  October  16,  1866,  fron, 
William  R.  Fisher  and  wife  to  Henrietta  Peterson.  The  language  of 
said  reservation  is  as  follows :  "Reserving  to  the  party  of  the  first  part 
sufficient  water  to  run  a  gristmill  on  the  same  milldam,  and  the  right 
at  all  times  to  maintain  a  dam  across  the  Tunungwant  creek  where  the 
dam  now  is,  and  the  right  to  flow  the  land  hereby  conveyed  so  far  as 
may  be  necessary  for  the  use  of  the  water  privilege." 

We  think  the  master  and  the  court  below  took  a  narrow  view  of  this 
reservation.  Their  construction  of  it  was,  in  the  language  of  the  for- 
mer, "simply  to  give  him  [Fisher]  the  right  to  flow  this  land  and  to 
maintain  a  dam  across  the  Tunungwant  creek  where  the  same  now  is. 
He  reserved  no  right  to  enter  upon  his  grantee's  land  for  any  purpose, 
,although  this  land  was  the  subject-matter  of  the  trade."  The  master's 
view,  as  we  understand  it,  was  that  the  right  to  maintain  the  dam  con- 
sisted solely  in  the  right  to  keep  up  the  breastwork  across  the  creek, 
and  to  overflow  the  seven  acres ;  but  he  has  failed  to  enlighten  us  how 
the  dam  is  to  be  maintained  if  the  bank  by  the  side  of  the  creek  is 
washed  away,  so  as  to  allow  the  water  to  escape.  In  such  case,  repair- 
ing the  bank  which  crosses  the  creek  would  be  of  no  avail. 

In  this  case  there  was  a  break  in  the  side  of  the  dam,  and  admit- 
tedly on  the  plaintiff's  land.  This  break  could  only  be  repaired  by  go- 
ing upon  the  land  of  the  latter,  and  it  was  in  doing  this  that  the  al- 
leged trespasses  occurred.    It  is  to  be  observed  that  the  reservation  is 

27  The  statement  of  facts  is  abridged. 


218  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

"to  maintain  a  dam  across  the  Tunungwant  creek  where  the  dam  now 
is" ;  that  is  to  say,  the  right  was  reserved  to  maintain  the  dam  in  its 
length  and  breadth  as  it  existed  at  the  time  of  tlie  reservation.  This 
inchided  all  the  banks  by  which  the  water  was  confined.  The  right  to 
maintain  the  dam  means  the  right  to  keep  up  the  banks,  and,  if  they 
are  washed  away,  to  repair  them.  The  right  to  repair  necessarily  in- 
volved the  right  to  go  upon  the  land  for  that  purpose,  and  must  have 
been  so  understood  by  the  parties  to  the  reservation  at  the  time  it  was 
made.  Were  it  otherwise,  the  reservation  would  have  been  wortjiless, 
and  we  are  not  to  presume  that  the  parties  intended  a  vain  thing.  We 
are  of  opinion  that  the  defendant  has  the  right  to  go  upon  the  plain- 
tiff's land  for  the  purpose  of  making  any  repairs  to  the  bank  necessary 
to  maintain  his  dam. 

The  decree  is  reversed,  and  the  bill  dismissed,  at  the  costs  of  the  ap- 
pellee.^* 


DUDGEON  v.  BRONSON  et  al. 

(Supreme  Court  of  Indiana,  1902.     159  Ind.  562,  64  N.  E.  910,  65  N.  E.  752, 

95  Am.  St.  Rep.  315.) 

DowLiNG,  C.  J.  Mary  C.  Bronson,  the  plaintiff  below,  with  whom 
was  joined  her  husband,  sued  the  appellant  for  a  way  of  necessity  over 
lands  owned  by  him.  The  court  overruled  a  demurrer  to  the  amended 
complaint.  A  special  finding  of  facts  was  made,  and  conclusions  of 
law  were  stated  thereon.  The  appellant  excepted  to  each  conclusion. 
Motions  for  a  new  trial  and  for  a  venire  de  novo  were  also  made  and 
overruled.    These  decisions  of  the  court  are  assigned  for  error. 

The  complaint  shows  that  in  1875  one  Stone  owned  two  tracts  of 
land  in  Allen  county,  one  of  which  contained  160  acres,  and  the  other 
40  acres.  Stone  sold  the  larger  tract  in  1875  to  one  Benninghoff,  and 
in  the  same  year  conveyed  the  smaller  to  the  appellee  Mary  C.  Bronson. 
The  160-acre  tract  bordered  upon  a  highway,  but  the  40-acre  tract  had 
no  outlet.  The  appellant  is  a  remote  grantee  of  Benninghoff.  The  suc- 
cessive owners  of  the  larger  tract  have  recognized  the  right  of  the  ap- 
pellee to  a  w^ay  over  the  same  to  the  public  highway,  and  such  way  is 
in  use  by  the  appellee,  but,  on  account  of  the  character  of  the  location 
of  the  said  way,  which  is  low  and  wet  for  a  large  part  of  the  year,  and 

2  8  See  Vermilva  v.  Chicas^o,  M.  &  St.  P.  Ey.  Co.,  66  Iowa,  606,  24  N.  W. 
234,  55  Am.  Rep".  279  (1885) ;  Prescott  v.  White,  21  Pick.  (Mass.)  341,  32  Am. 
Dec.  266  (1838);  Wliito  v.  Eagle  &  Pheuix  Hotel  Co.,  68  N.  H.  38,  34  Atl. 
672  (1894) ;  Central  Christian  Church  v.  Lennon,  59  Wash.  425,  109  Pae. 
1027  (1910).     Compare  Thompson  v.  Uglow,  4   Or.  309   (1873). 

A.  had  an  easement  in  fee  over  B.'s  land  for  water  pipes.  B.  started  to 
build  a  house  on  his  land  in  such  a  way  that  the  repairing  of  the  pipes,  if 
necessary,  would  be  much  more  diflicult  and  expensive.  Held,  A.  may  en- 
join B.  from  so  building.     Goodhart  v.  Ilyett.  L.  R.  25  Ch.  D.  182  (1883). 

As  to  the  liability  of  the  dominant  to  the  servient  owner  for  damage 
caused  bv  the  non-negligent  exercise  of  the  easement,  see  Jones  v.  Pritchard, 
flQOSl  1  CU.  630. 


Ch.  2)  EASEMENTS  219 

the  nature  of  the  soil,  which  is  soft,  the  appellee  cannot  pass  over  the 
said  way  without  inconvenience  and  difficulty.  In  its  present  condition, 
the  said  way  is  useless  to  the  appellee  for  ingress  and  egress  to  and 
from  her  land,  and  an  additional  strip  4  feet  in  width,  running  the  whole 
length  of  said  way,  is  required  to  render  said  way  passable  and  useful. 
The  appellant  refused  to  let  the  appellee  use  such  additional  strip,  and 
has  forbidden  her  to  enter  upon  the  same.  The  relief  prayed  for  is 
that  the  width  of  the  way  be  fixed  at  20  feet. 

The  case  stated  in  the  complaint  is  one  in  which  the  appellee  was 
originally  entitled  to  a  way  of  necessity.  Stone  owned  both  the  outer 
and  larger  tract  bordering  on  the  highway,  and  the  inner  and  smaller 
one,  which  had  no  outlet.  If  the  smaller  tract  was  first  sold,  the  right 
of  access  to  the  highway  over  the  lands  of  the  grantor  was  appurtenant 
to  the  grant.  If  the  larger  was  first  sold,  then  a  way  of  necessity  was 
impliedly  reserved  by  tlie  grantor  for  the  benefit  of  the  40-acre  tract. 
But  it  appears  from  the  complaint  that,  after  the  conveyance  of  the 
two  tracts  by  Stone,  a  way  16  feet  in  width  was  granted  to  and  accept- 
ed and  used  by  the  appellee,  and  that  she  still  continues  to  use  it.  She 
does  not  allege  that  she  has  no  outlet  from  her  land  to  the  public  high- 
way, btrt  says  that  the  way  (which  we  must  presume  was  agreed  upon 
between  the  appellee  and  the  appellant,  or  his  grantors)  has  become  wet 
and  inconvenient,  and  therefore  useless.  Having  accepted  a  way  of  a 
certain  width,  and  over  a  particular  part  of  the  lands  owned  by  tlje 
party  holding  the  servient  estate,  the  appellee  has  no  right  to  change 
it,  but  must  be  confined  to  the  way  thus  selected.  The  grounds  of  the 
complaint  are  mere  matters  of  inconvenience.  That  the  way  once  se- 
lected and  agreed  upon  is  too  steep  or  too  narrow  or  too  wet  does  not 
entitle  the  appellee  to  dem^and  a  new  way,  or  to  increase  tlie  width  or 
change  the  direction  of  the  old  one. 

The  right  of  way  from  necessity  over  the  land  of  another  is  always 
of  strict  necessity,  and  nothing  short  of  this  will  create  the  right.  It 
is  said  in  Ritchey  v.  Welsh,  149  Ind.  214,  221,  48  N.  E.  1031,  1033,  40 
L.  R.  A.  105,  that :  "When  the  way  is  once  selected,  it  cannot  be  chang- 
ed by  either  party  without  the  consent  of  the  other.  Nichols  v.  Luce, 
24  Pick.  [Mass.]  102,  35  Am.  Dec,  302;  Holmes  v.  Seely,  19  Wend. 
[N.  Y.]  507,  510;  Morris  v.  Edgington,  3  Taunt.  24;  Godd.  Easem. 
(Bennett's  Ed.)  351."  See,  also,  Washb.  Real  Prop.  (4th  Ed.)  306; 
Washb.  Easem.  163-168.  "The  grantee  is  bound  to  keep  the  way  in 
repair,"''  and  is  not  permitted  to  go  extra  viam,  as  a  traveler  upon  a 
public  highway  is  allowed  to  do,  when  the  way  is  impassable,  except, 
it  seems,  when  the  private  way  is  temporarily  or  accidentally  obstruct- 

2  9  "By  common  law,  he  who  has  the  use  of  a  thing  ought  to  repair  it," 
Mansfield,  C.  J.,  in  Tavlor  v.  Whitehead,  2  Doug.  745  (17S1).  Ace.:  Dana 
V.  Smith,  114  Me.  262,  95  Atl.  1034   (1915). 

A.  leased  a  house  to  B.,  together  witli  the  use  of  a  piimp  on  other  land 
belonging  to  A.  A.  allowed  the  pump  to  get  out  of  repair.  Held,  B.  has  no 
cause  of  action  against  A.     Pomfret  v.  Ricroft,  1  Saund.  321  (lt>t)9). 


220  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

ed."  Holmes  v.  Seely,  supra.  "Where  the  right  to  an  easement  is 
granted  without  giving  definite  location  and  description  to  it,  the  exer- 
cise of  the  easement  in  a  particular  course  or  manner,  with  the  consent 
of  both  parties,  renders  it  fixed  and  certain,  and  the  dominant  owner 
has  no  right  afterwards  to  make  changes  affecting  its  location,  extent, 
or  character."  10  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  430,  and  cases  cited 
in  note  3. 

The  situation  of  the  appellee  is  the  same  as  if  her  deed  from  the  own- 
er of  the  servient  tract  had  expressly  granted  and  described  a  way,  16 
feet  wide,  from  her  40-acre  lot  over  the  160-acre  tract  to  the  highway, 
along  the  route  followed  by  the  way  she  now  owns.  In  that  case  she 
certainly  could  not  have  compelled  the  appellant  to  give  her  a  new  way, 
or  to  increase  the  width  of  the  old  one.  As  it  appears  from  the  com- 
plaint that  the  appellee  can  get  to  her  property  from  the  highway  over 
a  way  already  belonging  to  her,  and  as  that  way  must  have  been  select- 
ed or  agreed  upon  by  her,  no  ground  is  shown  for  her  claim  to  an  ad- 
ditional strip  as  a  way  of  necessity.  The  demurrer  to  the  complaint 
should  have  been  sustained.  The  other  errors  assigned  need  not  be 
considered. 

For  the  error  of  the  court  in  overruling  the  demurrer  to  the  com- 
plaint, the  judgment  is  reversed,  with  directions  to  sustain  the  demur- 
rer, and  for  further  proceedings  in  accordance  with  this  opinion.^" 

3  0 Ace:  OaliTi  R.  &  L.  Co.  v.  Armstrong,  18  Haw.  258  (1907);  Jennison 
V.  Walker,  11  Graj'  (Mass.)  423  (1S60) ;  Outhank  v.  Lake  Shore  &  M.  S.  K. 
Co..  71  N.  Y.  194,  27  Am.   Rep.  35   (1877). 

A.  granted  the  city  of  V.  a  right  of  way  over  A.'s  land  "for  any  water 
pipes  or  mains  which  may  be  laid  by  the  said  city  of  Vallejo  *  *  *  and 
the  right  to  maintain  such  water  pipes  and  mains  *  *  •  and  also  the 
use  of  so  much  land  as  is  necessary  in  the  laying  down  and  maintaining  of 
said  water  pipes."  V.  laid  down  a  10-inch  pipe.  Twelve  years  later  it 
sought  to  lay  a  second  and  14-inch  pipe  within  3  feet  of  the  first  pipe.  Held, 
it  cannot  do  so.  Winslow  v.  City  of  Vallejo,  148  Cal.  723,  84  Pac.  191,  5  U 
R.  A.  (N.  S.)  851,  113  Am.  St.  Rep.  349,  7  Ann.  Cas.  851  (1906).  Contra: 
Standard  Oil  Co.  v.  Buchi,  72  N.  J.  Eq.  492,  66  Atl.  427  (1907),  ante,  p.  190. 
Compare  Sked  v.  Pennington  Spring  Water  Co.,  72  N.  J.  Eq.  599,  65  Atl.  7i:; 
(1907);  Moorhead  v.  Snyder,  31  Pa.  514  (1858). 

"It  is  settled  law  that  where  an  unlocated  right  of  way  is  granted  or  re- 
served, the  owner  of  the  servient  estate  may  in  the  first  instance  designate 
a  reasonable  way,  and  if  he  fails  to  do  so,  the  owner  of  the  dominant  es- 
tate may  designate  it.  Jones  on  Easements,  §  337;  Kripp  v.  Curtis,  71  Cal. 
62,  65,  11  Pac.  879  (1886) ;  Blum  v.  Weston,  102  Cal.  362,  369,  36  Pac.  778.  41 
Am.  St.  Rep.  ISS  (1894).  Findings  sufficiently  sustained  by  evidence  estab- 
lish that  there  was  no  such  failure  in  this  case  as  to  entitle  plaintiff  to 
make  the  selection.  But  had  she  been  so  entitled,  she  would  still  have  been 
required  to  select  a  route  that  was  reasonable  as  to  both  parties,  in  view  of 
all  the  circumstances,  one  'that  will  not  unreasonably  interfere  with  the 
grantor  in  the  enjoyment  of  his  estate.'  Jones  on  Easements,  §  337.  ,  The 
trial  court  was  warranted  in  concluding  that  the  route  selected  by  plaintiff 
was  unreasonable,  in  view  of  all  the  circumstances.  The  case  before  us  is 
simply  one  where  the  parties  have  been  unable  to  agree  upon  a  reasonable 
route  in  which  event  the  location  may  be  determined  in  equity.  Jones  on 
Easements,  §  354 ;  Gardner  v.  Webster,  64  N.  H.  520,  522,  15  Atl.'  144  (1888)." 
Angellotti.  J.,  in  Ballard  v.  Titus,  157  Cal.  683,  110  Pac.  122  (1910).  See 
Moore  v.  White,  159.  Mich.  460,  124  N.  W.  62,  134  Am,  St.  Rep.  735  (1909). 


Ch.  2)  EASEMENTS  221 

DURFEE  V.  GARVEY. 

(Supreme  Court  of  California,  1889.     78  Cal.  546,  21  Pac.  302.) 

[The  plaintiff  claimed  the  right  to  drain  his  land  by  means  of  a 
ditch  running  through  the  defendant's  land.] 

Belcher,  C.  C.^^  *  *  *  Prior  to  1882,  a  part  of  defendant's 
land  was  cultivated,  but  in  that  year  he  ceased  to  cultivate  it,  and  has 
since  used  it  only  for  pasturing  stock.  He  has  kept  on  it  horses,  mules, 
and  cattle,  and  these  animals,  by  feeding  along  the  ditch,  and  frequent- 
ly passing  over  it,  have  broken  in  its  sides,  and  have  thereby  filled  it 
up  and  obstructed  the  flow  of  water  through  it.  This  obstruction  in- 
terfered with  the  drainage  of  plaintiff's  land,  and  prevented  his  culti- 
vating 20  to  25  acres  of  it  on  which  he  could  otherwise  have  raised 
good  crops.    *    *    * 

1.  The  theory  of  plaintiff,  developed  at  the  trial,  in  reference  to  his 
first  cause  of  action,  was  that  he  had  acquired  a  prescriptive  right  to 
the  use  of  the  ditch  leading  from  his  lower  line  to  the  arroyo,  and  that 
defendant  had  no  right  to  make  any  use  of  his  land  which  would  cause 
an  obstruction  of  the  ditch,  and  that  if  he  did  so  he  must  keep  it  cleared 
out,  or  be  liable  for  any  damages  caused  by  the  obstruction.  On  the 
other  hand,  the  theory  of  defendant  was  that  plaintiff-  had  acquired  no 
prescriptive  right  to  the  use  of  the  ditch,  and  that,  if  he  had,  defend- 
ant had  a  right  to  use  his  land  for  any  legitimate  and  ordinary  purpose, 
and  if,  while  so  using  it,  the  ditch  was  injured  or  obstructed  the  bur- 
den was  upon  the  plaintiff  to  remove  the  obstructions  and  keep  it  in 
repair.     *     *     * 

The  question  then  presented  for  decision  on  this  branch  of  the  ca.''e, 
conceding  that  plaintiff  had  acquired  an  irrevocable  right  to  have  his 
ditch  maintained  over  defendant's  land,  is,  to  what  extent  does  that 
right  interfere  with  and  limit  defendant's  right  to  use  his  land  ?  Must 
defendant,  if  he  would  use  his  land  for  the  pasturage  of  stock,  fence 
in  the  ditch,  or  cover  it  over  so  that  the  stock  cannot  tread  down  its 
sides?  And,  if  he  so  uses  it,  is  the  burden  cast  upon  him  to  keep  the 
ditch  clear  and  unobstructed,  so  that  water  will  continuously  flow 
through  it  ?  It  must  be  admitted  that  the  use  of  land  for  pasturage  is 
a  common  and  legitimate  use  of  it,  and  there  is  no  pretense  that  de- 
fendant did  not  exercise  ordinary  care  over  his  stock.     *     *     * 

Now,  if  the  plaintiff's  theor}-  be  correct,  the  defendant  cannot  use 
his  land  as  a  pasture,  though  that  may  be  the  best  and  perhaps  only 
profitable  use  he  can  make  of  it,  unless  he  employs  men  to  patrol  the 
ditch  and  keep  the  cattle  away  from  it,  or  goes  to  the  expense  of  fenc- 
ing it  in  or  covering  it  with  bridges.  It  does  not  seem  to  us  that  the 
plaintiff's  easement  on  the  land  can  impose  any  such  burden  as  that  on 

81  Part  of  ttie  opinion  is  omitted.' 


222  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

the  defendant.  The  general  rule  is  that  any  man  may  use  his  own  land 
in  his  own  way,  provided  he  does  not  use  it  negligently,  so  as  to  in- 
jure his  neighbor;  and  the  rule  is,  also,  that,  where  one  man  has  an 
easement  over  the  land  of  another,  the  duty  of  keeping  the  easement  in 
repair  rests  upon  its  owner,  and  when  repairs  are  necessary  he  may 
enter  on  the  servient  tenement  to  make  them.  God.  Easem.  285 ;  Gale 
&  W.  Easem.  215;  Prescott  v.  Williams,  5  Mete.  (Mass.)  435,  39  Am. 
Dec.  688.  It  does  not  appear  that  plaintiff  was  ever  denied  the  privilege 
of  making  any  repairs  upon  his  ditch,  and  it  would  be  going  to  an  ex- 
treme and  unwarranted  length,  as  it  seems  to  us,  to  hold  that  in  a  case 
like  this  defendant  is  made  liable.  In  our  opinion  the  court  erred  in 
giving  the  instruction  above  quoted  for  plaintiff  and  in  refusing  to  give, 
without  modification,  that  asked  by  defendant.     *     *     * 

Per  Curiam.  For  the  reasons  given  in  the  foregoing  opinion  the 
judgment  and  order  are  reversed,  and  the  cause  remanded  for  a  new 
trial,  unless  the  plaintiff  shall,  within  30  days  after  the  going  down  of 
the  remittitur,  file  in  the  court  below  a  release  of  $150,  and  his  costs 
in  that  court,  and  if  he  does  file  such  release  that  the  judgment  and  or- 
der stand  affirmed. -^^ 


ATTORNEY  GENERAL  v.  WILLIAMS. 

(Supreme  Judicial  Court  of  M.assachusetts,  1885.    140  Mass.  329,  2  N.  E.  80,  3 
N.  E.  214,  54  Am.  Rep.  468.) 

Information  in  equity,  at  the  relation  of  the  Harbor  and  Land  Com- 
missioners, to  restrain  the  erection  of  bay  windows  or  projections  ex- 
tending  into  or  over  a  passageway  in  the  rear  of  the  defendant's Jiouse^ 
"*^on  the  corner  of  Boylston  Street  and  Exeter  Street  in  Boston.  Hear- 
ing before  Devens,  J.,  who  reserved  the  case  for  the  consideration  of 
the  full  court.    The  facts  appear  in  the  opinion. 

C.  Allen,  J.^^  The  first  question  which  we  have  considered  is, 
whether  an  information  in  the  name  of  the  Attorney.  General  can  be 
maintained  to  enforce  the  stipulations  In  respect  to  the  passage- 
way.    *     *     * 

[The  Court  answered  this  question  in  the  affirmative.] 

32  Ace:  Citv  of  Bellevue  v.  Daly,  14  Idaho.  545.  94  Pac.  103G.  15  L.  R.  A. 
(N.  S.)  902,  125  Am.  St.  Rep.  179.  14  Ann.  Cas.  1136  (1908). 

A.  had  a  right  of  way  over  B.'s  farm  to  his  summer  home.  He  built  a 
carriage  road  at  an  expense  of  $700  B.  di-ew  heavy  loads  of  agricultural 
products  over  the  road  from  one  part  of  his  farm  to  another  and  seriously 
damaged  the  road.  Held  A.  may  enjoin  B.  from  so  doing.  Ilennau  v.  Roberts, 
119  N.  Y.  37,  23  N.  E.  442.  7  L.  R.  A.  220,  16  Am.  St.  Rep.  800  (1S90). 

See  Rockland  Water  Co.  v.  Tillson,  75  Me.  170  (18S3) ;  Draper  v.  Varnerin, 
220  Mass.  67.  107  N.  E.  3."0  (1914) :  Kansas  City  Southern  Ry.  Co.  v.  Sand- 
lin,  173  Mo.  App.  384.  15S  S.  W.  857  (1913);  Haley  v.  Colcord,  59  N.  H.  7.  47 
Am.  Rep.  176  (1879);  Williams  v.  Safford.  7  Barb.  (N.  Y.)  309  (1849);  Mof- 
fitt  V.  Lytle,  105  Pa.  173,  30  Atl.  922  (1895). 

38  Part  of  the  opinion  is  omitted. 


Ch.  2)  EASEMENTS  223 

The  principal  ground  of  objection  to  th^  maintenance  of  the  infor- 
mation is,  that  the  defendant  has  not  infringed  upon  the  stipulation 
referred  to.  Before  considering  this  question  in  the  light  of  the  partic- 
ular stipulation,  it  may  be  well  to  review  some  of  the  principal  authori- 
ties cited  at  the  argument.  The  leading  case  upon  this  subject  is  At- 
kins V.  Bordman,  2  Mete.  457,  Z7  Am.  Dec.  100,  where  it  was  held 
that  the  owner  of  land,  over  which  his  grantor  had  reserved  a  pas- 
sageway, might,  under  the  peculiar  circumstances  of  that  case,  lawfully 
cover  such  passageway  with  a  building,  if  he  left  a  space  so  wide,  high, 
and  light  that  the  way  was  substantially  as  convenient  as  before  for 
the  purposes  for  which  it  was  reserved.  There,  from  the  language  of 
the  reservation,  construed  in  the  light  of  the  existing  facts  and  cir- 
cumstances, the  right  reserved  was  held  to  be  that  of  ''a._suita.bLe._aryi 
corrvenient_f ootway  to  and  from  the  grantor's  dwelling-house,  of  suita- 
ble height  and  dimensions  to  carry  in  and  out  furniture,  provisions,  and 
necessaries  for  family  use,  and  to  use  for  that  purpose  wheelbarrows, 
hand  sleds,  and  such  small  vehicles  as  are  commonly  used  for  that 
purpose,  in  passing  to  and  from  the  street  to  the  dwelling  in  the  rear, 
through  a  foot  passage,  in  a  closely  built  and  thickly  settled  town."  It 
was  ajis^  which  was  individual  to  the  occupant  of  that  house,  and  not 
for  the  public.  It  was  limited  to  certain  simple  uses,  connected  with 
getting  things  into  and  out  of  the  house.  It  is  obvious  that  the  rights 
of  the  single  person  entitled  ^under  such  circumstances  to  a  passage- 
way are  not  necessarily  identical  with  the  rights  involved  in  the  pres- 
ent case.     *     *     * 

It  is  necessary  now  to  look  at  the  terms  of  the  bond  in  which  the 
stipulation  relied  on  in  the  present  case  is  contained,  in  order  to  see 
what  it  means.  In  the  first  place,  it  is  to  be  borne  in  mind  that  the 
place  in  question  is  a  paj^t  of  a  great  scheme  of  improvement  of  waste 
land  in  a  city,  for  streets  and  dwelling.  The  description  of  the  land 
carefully  defines  the  width  and  lines  of  the  passageway :  "Running  one 
hundred  and  twelve  feet  to  a  passageway  sixteen  feei  wide;  thence 
westerly  on  the  line  of  said  passageway ;  *  *  *  also  all  that  part 
of  said  passageway  sixteen  feet  wide  that  lies  southerly  of  its  centre 
line,  and  between  the  easterly  and  westerly  lines  of  said  premises  ex- 
tended ;  reference  being  had  to  the  plan  accompanying  the  fifth  annual 
report  of  the  commissioners  on  the  Back  Bay."  A  reference  to  the 
plan  shows  a  system  of  streets,  covering  an  extensive  territory,  with 
passageways  for  the  accommodation  of  the  houses  on  two  streets,  and 
for  access  to  their  rear  entrances.  "Any  building  erected  on  the  prem- 
ises shall  be  at  least  three  stories  high  for  the  main  part  thereof,  and 
shall  not  in  any  event  be  used  for  a  stable  or  for  any  mechanical  or 
manufacturing  purposes."  There  were  also  other  provisions  showing 
that  dwellinghouses  of  a  high  class  were  contemplated.  Afterwards 
followed  tlie  'particular  stipulation  relied  on,  "that  a  passageway  six- 
teen feet  wide  is  to  be  laid  out  in  the  rear  of  the  premises,  the  same 


224  RIGHTS  IN  THE   LAND  OF  ANOTHER  (Part  2 

to  be  filled  in  by  the  commonwealth,  and  to  be  kept  open  and  maintained 
by  the  abutters  in  common." 

It  was  contemplated  that  buildings  might  be  erected  on  both  sides  of 
this  passageway.  Each  owner  might  build  up  to  the  line  of  it.  The 
defendant  has  done  so,  and  has  built  bay  windows  from  a  point  eight 
feet  above  the  sidewalk,  and  extending  from  three  to  four  feet  into 
the  passageway,  to  the  top  of  his  house,  six  stories  high.  If  the  op- 
posite owner  should  do  the  same,  the  passageway  between  the  build- 
ings, extending  upwards  from  a  point  beginning  eight  feet  above  the 
surface  of  the  ground,  would  be  eight  feet,  instead  of  sixteen,  in  width. 
It  would  be  half  closed  up,  so  far  as  Hght  and  air  and  prospect  are  con- 
cerned. And,  if  this  may  be  done,  it  is  difficult  to  place  any  practical 
limit  to  what  might  be  done  in  this  manner.  The  passageway  was  de- 
signed as  a  thoroughfare  for  the  accommodation  of  many  persons.  In 
appearance,  it  is  on  the  plan  indistinguishable  from  a  narrow  street. 
It  is  connected  at  each  end  with  broad  and  important  streets.  It  was 
to  be  kept  open.  No  gates  could  be  put  at  the  ends  of  it.  It-  was  to 
be  "maintained,"  that  is,  kept  in  good  order  for  use.  Its  width  shows 
that  it  was  designed  for  vehicles  drawn  by  horses,  as  well  as  for  travel- 
lers afoot.  The  supplies  for  all  the  houses  on  both  sides  of  it,  for  its 
entire  length,  would  be  chiefly  deliverable,  and  all  refuse  matter  re- 
movable, by  its  means.  Thus  we  have  a  passageway  of  defined  dimen- 
sions; in  the  rear  of  all  the  houses  on  t\yo  broad  streets,  designed  for 
use  by  all  who  may  have  occasion  to  seek  the  rear  entrance  of  any 
houses  on  either  street, — a  passageway  available  also  for  police  purposes 
and  for  use  in  the  extinguishment  of  fires, — a  passageway  which  is  to  _be 
maintained,  and  kept  open,  and  designed  for  horses  and  wagons,  in  a 
part  of  a  large  city  which  is  designed  to  be  wholly  occupied  by  dwell- 
ings of  a  high  class,  to  which  air  and  light  and  prospect  are  not  only 
desirable,  but  essential,  in  the  rear  as  well  as  in  the  front,  with  no  limi- 
tation to  the  use  which  may  be  made  of  it  or  of  the  persons  by  whom 
it  may  be  used. 

In  view  of  these  considerations,  we  think  the  language  of  the  stipu- 
lation was  designed  to  signify  a  separation  of  sixteen  feet  at  least  be- 
tween the  rear  portions  of  the  buildings  abutting  on  the  passageway. 
A  passageway  sixteen  feet  wide  was  not  merely  to  be  kept  open  at  both 
ends,  but  open  to  the  sky  throughout  its  entire  lengthy  for  the  general 
convenience  and  benefit.  It  is  dasy  to  see  that  the  rights  of  others 
would  be  lessened,  upon  any  other  construction.  The  opposite  owner, 
who  might  not  wish  in  like  manner  to  build  into  the  passageway,  would 
have  in  the  rear  of  his  house  a  space  just  so  much  narrower.  The  ad- 
jacent owner  on  the  same  side,  who  did  not  wish  to  occupy  a  part  of 
the  passageway  with  his  building,  would  have  light,  air,  and  prospect 
cut  off.  The  right  themselves  to  occupy  the  passage  in  this  manner 
would  be  no  equivalent  to  owners  who  did  not  wish  to  build  their  hous- 
es so  as  to  extend  back  to  the  line  of  it. 


Ch.  2)  EASEMENTS  225 

There  is  nothing  in  the  facts  proved  at  the  hearing  and  reported  to 
us  which  in  any  way  controls  the  construction  thus  put  upon  the  lan- 
guage of  the  stipulation.  The  result  is,  that  a  decree  must  be  entered 
for  the  removal  of  the  projections.^  "    ' 

Decree  accordingly.^* 


BITELLO  V.  UPSON. 

(Supreme  Court  of  Connecticut,  1908.     SO  Conn.  497,  69  Atl.  21,  16  L.  R.  A. 
m.  S.]  193,  125  Am.  St.  Rep.  126.) 

Action  to  restrain  the  obstruction  of  a  passway,  and  for  damages, 
brought  to  and  tried  by  the  court  of  common  pleas  in  New  Haven  coun- 
ty, Wolfe,  J.;  facts  found  and  judgment  rendered  for  the  plaintiff, 
and  appeal  by  the  defendant.    Error  and  cause  remanded. 

HaIvL,  J.^^  Anson  Brown  owned  a  tract  of  land  on  the  northerly 
side  of  Washington  avenue  in  New  Haven,  about  89  feet  wide  and  230 
feet  deep.  In  October,  1901,  Brown  conveyed  the  northerly  end  of 
said  tract,  a  lot  some  70  feet  on  the  east  and  west,  and  89  feet  on  the 
north  and  south,  to  the  plaintiff,  and  also  by  the  same  deed  granted  the 
_£laintift'  a  right  of  jway  oyer  the  east  side  of  the  remainder  of  the  gran- 
tor's tract,  in  the  following  language :  "And  the  use  of  a  right  of  way 
in  common  with  myself,  heirs,  and  assigns,  forever,  over  a  strip  of 
land  ten  (10)  feet  wide  and  one  hundred  and  sixty  (160)  feet  more  or 
less  deep,  from  Washington  avenue  to  the  above-described  land."  At 
the  time  of  said  conveyance  there  was  a  dwelling  house  on  the  lot  con- 
veyed, and  there  is  now  also  a  small  barn  and  sheds  upon  it,  *  *  * 
[The  title  to  the  dominant  and  servient  pieces  had  passed  by  mesne 
conveyances   to  the  plaintiff  and   defendant   respectively.]      In   De- 

3  4  See  Crocker  v.  Cotting,  181  Mass.  146,  63  N.  E.  402  (1902) ;  Schmoele  v. 
Betz,  212  Pa.  32,  61  Atl.  525,  108  Am.  St.  Rep.  845  (190.5).  Compare  Swift  v. 
Cocker,  83  Ga.  789.  10  S.  E.  442,  20  Am.  St.  Rep.  347  (1SS9). 

A.  laid  out  a  small  parcel  of  land  in  seven  house  lots,  which  he  conveyed  in 
fee  to  various  purchasers.  All  the  lots  had  access  to  a  7-foot  alley  and  some 
of  the  lots  had  no  other  access ;  a  right  of  way  over  the  alley  was  made  appur- 
.  tenant  to  each  lot,  and  it  was  stipulated  that  the  ow^ners  of  the  seven  lots 
should  bear  the  entire  cost  of  the  upkeep  of  the  alley.  The  purchaser  of  one 
lot,  who  owned  other  adjacent  land,  secured  from  A.  a  release  of  all  his  in- 
terest in  the  land  under  the  alley,  and  then  attempted  to  use  the  alley  for  the 
benefit  of  his  other  land.  Held,  he  may  be  enjoined  by  the  owners  of  the 
other  dominant  lots  from  so  doing.  Greene  v.  Canny,  137  Mass.  64  (1884).  See 
Wilson  V.  Ford,  209  N.  Y.  186,  102  N  E.  614  (1913) ;  Kirkham  v.  Sharp,  1 
"V\Taart.  (Pa.)  323,  29  Am.  Dec.  57  (1832) ;  Stephen  Putney  Shoe  Co.  v.  Rich- 
mond, F.  &  P.  R.  Co.,  116  Va.  211,  81  S.  E.  93  (1914)- 

A.  conveyed  a  parcel  of  land  to  B.  in  fee,  with  a  right  of  way  over  a  30-foot 
strip  still  owned  by  A.  A.  subsequently  conveyed  another  parcel  to  C.  in 
fee,  with  a  right  of  way  over  the  same  strip.  Held,  B.  cannot  enjoin  C. 
from  building  a  switch  track  over  the  said  strip.  Murphy  Chair  Co.  v.  Ameri- 
can Radiator  Co.,  172  Mich.  14,  137  N.  W  791  (1912).  Ace:  Forsyth  v. 
American  Maize  Products  Co.,  59  Ind.  App.  634,  108  N.  E.  622  (1915). 

3  5  Part  of  the  opinion  is  omitted.    , 

BiG.RlGHTS — 15 


^^x^ 


226  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

cember,  1906,  the  defendant  commenced  constructing  on  the  east 
side  of  his  dwelling  house,  which  fronts  on  Washington  avenue  and 
adjoins  said  driveway,  a  bay  window  llfeet  and  6  inches  above  the 
ground,  extending  about  16  feet  north  from  the  southeast  corner  of  the 
house,  and  projecting  over  said  driveway  2  feet  and  6  inches. 

Upon  the  question  of  the  possible  interference  of  this  Fay  window 
with  the  plaintiff's  use,  of  the  driveway  these  facts  are  found :  The 
plaintiff  is  engaged  in  the  ice  business  and  keeps  his  ice  wagon,  which 
is  5  feet  and  4  inches  high,  upon  said  premises.  A  two-horse  covered 
ice  wagon  is  8  feet  and  6  inches  high  and  6  feet  and  2  inches  wide. 
The  highest  furniture  van  used  in  New  Haven  is  10  feet  6  inches  high 
and  7  feet  4  inches  wide.  The  highest  two-horse  canvas  covered  truck 
is  10  feet  11  inches  high.  The  ordinary  two-horse  truck,  loaded  with 
furniture,  is  not  higher  than  11  feet.  If  a  high  furniture  van  were  to 
be  driven  through  the  driveway  into  the  plaintiff's  premises,  it  could 
not  be  turned  around  on  account  of  the  buildings.  .A  two-horse  load 
of  loose  hay  is  from  8  to  10  feet  wide  and  from  10  to  12  feet  high. 
The  plaintiff  purchases  his  hay  by  the  bale,  and  has  never  carted  any- 
thing over  said  driveway  with  which  said  bay  window  would  interfere. 
The  finding  states  that  in  addition  to  the  above  facts  found,  as  stipu- 
lated by  the  paVties,  the  court  personally  viewed  the  premises,  and  that, 
"in  the  light  of  all  the  surrounding  circumstances,  and  from  a  view  of 
the  premises,"  reached  the  conclusion  that  "the  plaintiff  is  not  only  en- 
titled to  an  unrestricted  right  of  way  over  the  strip  of  land  described 
in  the  grant  to  him  for  the  purpose  of  passage,  but  is  also  entitled  to 
the  right  of  uninterrupted  access  of  light  and  air  over  and  across  the 
same,  and  that  the  erection  of  the  structure  in  question  is  an  improper 
and  material  interference  with,  and  obstruction  of,  such  rights,  thus 
rendering  the  right  of  way  less  beneficial  and  useful."     *     *     * 

By  this  language,  as  well  as  from  the  judgment  rendered  upon  the 
facts  found,  it  seems  clear  that  the  court  intended  to  hold  that  any  ma- 
terial interference  by  the  defendant  with  the  "access  of  light  and  air 
over  and  across"  the  strip  of  land  was  an  obstruction  of  the- plaintiff's 
right,  even  though  it  did  not  interfere  with  the  reasonable  and  ordi- 
nai-y  use  of  the  right  of  way.     Tliis  ruling  was  erroneous. 

By  his  deed  from  Brown  the  defendant  acquired  the  fee  to  land  over 
which  he  was  building  the  bay  window,  incumbered  by  a  right  of  way 
previously  granted  by  Brown  to  the  plaintiff,  which  was  a  right  of  pas- 
sage over  the  10-foot  strip.  Hart  v.  Chalker,  5  Conn.  311-314.  The 
deed  from  Brown  to  the  plaintiff  containedjio  express  grant  of  an  ease- 
ment of  light  and  air.  Implied  grants  of  such  easements  not  reasona- 
bly necessary  for  the  enjoyment  of  the  rights  expressly  granted  are 
not  favored  in  this  state.  Section  4046,  Gen.  St.  1902.  There  wa^_no^ 
implied  grant  to  the  plaintiff  of  a  right  to  have  light  and  air  pass  over 
the  driveway  to  any  greater  extent  than  was  necessary  for  the  rea- 
sonable enjoyment  of  the  right  of  passage  granted.  Puorto  v.  Chieppa, 
78  Conn.  401-404,  62  Atl.  664;   Robinson  v.  Clapp,  65  Conn.  365,  32 


Ch.  2)  EASEMENTS  227 

Atl.  939,  29  L.  R.  A.  582 ;  Atkins  v.  Bordman,  2  Mete.  (Mass.)  457,  37 
Am.  Dec.  100;  Gerrish  v.  Shattuck,  132  Mass.  235.  We  are  unable  to 
see  how  the  projection  2i/2  feet  over  the  driveway  of  a  bay  window 
11%  feet  from  the  ground  could  so  diminish  or  affect  the  supply  of 
light  and  air  in  the  driveway  as  to  prevent  those  persons  who  have  the 
right  to  use  it,  or  those  vehicles  which  are  permitted  to  be  driven  over 
it,  from  passing  along  it  with  comfort,  safety,  and  convenience,  and  the 
trial  court  has, not  found  that  it  would.  The  driveway  is  not  to  be  kept 
supplied  with  light  and  air  for  the  benefit  of  the  public.  The  way  grant- 
ed to  the  plaintiff  is  appurtenant  to  his  land,  and  is  a  private  one.  That 
this  lane  is  known  as  "Washington  Place"  does  not  make  it  a  public 
court  qrjhighway  or  thoroughfare.  The  deed  to  the  defendant  de- 
scribes it  as  "leading  to  and  from  Washington  Place."  The  grant  to 
the  plaintiff'  gives  no  right  to  any  person'  to  use  it  for  any  other  pur- 
pose than  in  passing  to  and  from  the  plaintiff's  premises. 

It  follows  from  what  we  have  said  that  the  judgment  was  erroneous,_ 
unless  it  appears  that  the  bay  window  itself  would  constitute  a  physi- 
cal obstruction  to  the  proper  use  of  the  driveway,  permitted  by  the  deed 
to  the  plaintiff.  The  court  has  not  found  that  it  would,  and  the  facts 
found  show  that  it  would  not.  The  top  of  the  highest  loaded  vehicle 
described  in  the  finding,  a  two-horse  load  of  loose  hay,  which  never 
has  passed  and  probably  never  will  pass  through  the  driveway,  might 
extend  6  inches  above  the  bottom  of  the  bay  window.  If  there  should 
ever  be  any  occasion  to  drive  such  a  loaded  vehicle  by  the  bay  window, 
it  evidently  could  be  done  without  any  inconvenience.  In  inquiring 
whether  an  injunction  ought  to  be  granted  upon  the  ground  that  the 
bay  window  may  directly  interfere  with  the  plaintiff's  use  of  the  drive- 
way the  proper  question  is,  not  what  use  the  plaintiff  might  possibly 
attempt  to  make  of  it^  but  wEat  uses  can  he  reasonably  be  expected  to 
have  p"ccaiTon  to,  make  of  it.^^  Such  uses  would  seem  to  be  covered  by 
those,  the  measurements  required  for  which  are  given  in  the  find- 
ing.    *     *     * 

There  was  error,  and  thejudgment  is  set  aside,  and  the  case  remand- 
ed, with  directions  to  render  judgment  for  the  defendant.  In  this  opin- 
ion the  other  Judges  concurred. ^'^        -.^J^  Uu4 

36  A.  had  a  right  of  way  to  rnd  from  his  wood  lot  over  three  adjoining 
tracts  of  land  belonging  to  B.     B.  put  up  fences  between  the  tracts,  with 

■movable  rails  at  A.'s  right  of  way.  In  an  action  by  A.  against  B.  to  compel 
him  to  remove  these  obstructions,  the  court  held  that  B.  could  not  l>e  com- 
pelled so  to  do,  saying:  •' *  *  *  The  plaintiff's  lot  is  still  wood  lot.  It 
may  remain  so  for  many  years.  *  *  *  There  is  nothing  inconsistent  in 
holding  that  tbe  present  arrangements  are  suitable  and  sufficient  under 
existing  circumstances ;  and  after  these  circimistances  shall  have  changed 
and  the  question  .shall  arise  as  to  what  shall  _then  be  proper,  to  determine 
that  a  passage  perpptually  opan  *  *  *  sha7l  be  required  of  the  defend- 
ant."   Bakeman  v.  Talbot.  31  N.  Y.  366,  88  Am.  Dec.  275  (1865). 

37  Ace. :  Atkins  v.  Bordman,  2  Mete.  (IMass.)  457,  37  Am.  Dec.  100  (1841),; 
Grafton  v.  Moir,  130  X.  Y.  405,  29  X.  E.  974,  27  Am.  St.  Rep.  533  (1S92). 

A.  owned  two  adjoining  city  lots,  there  being  an  alley  on  the  east  side  of 


228  RIGHTS  IN  THE   LAND   OF  ANOTHER  (Part  2 


PITTSBURGH,  FT.  W.  &  C.  RY.  v.  PEET. 

(Supreme  Court  of  Pennsylvania,  1S03.    152  Pa.  488,  25  Atl.  612,  19  L.  K.  A. 

467.) 

Ejectment  for  a  lot  of  ground  on  the  south  side  of  Robinson  street 
in  the  city  of  Allegheny. 

At  the  trial,  before  Stowe,  P.  J.,  plaintiff  claimed  title  to  the  land 
in  controversy  by  virtue  of  condemnation  proceedings  in  1855.  Part 
of  the  land  condemned  was  used  by  the  railroad  company  for  its  tracks 
and  abutments ;  but  tlie  lot  in  suit  was  not  in  actual  occupation  of  the 
company.  At  the  time  of  the  condemnation  proceedings,  the  assistant 
engineer  of  the  railroad  company  which  condemned  the  land  testified 
that  the  property  was  not  to  be  used  for  sidings  or  depot  purposes,  but 
it  was  intended  eventually  to  be  used  to  build  protection  walls  upon  it 
on  either  side  and  fill  them  in.  Defendants  averred  that  they  bought 
the  land  without  any  actual  notice  that  the  railroad  company  claimed 
it,  and  they  were  about  to  bnild  a  warehouse  upon  it  when  this  action 
was  brought. 

[Verdict  and  judgment  for  plaintiffs.    Defendants  appeal.] 

Paxson,  C.  J.^^  This  was  an  action  of  ejectment  in  the  court  be- 
low.   The  plaintiffs  showed  title  to  the  locus  in  quo  by  certain  deeds, 

the  west  lot.  A.  granted  the  east  lot  to  B.  in  fee,  "together  with  the  free  use 
*  *  *  of  the  said  alley  for  free  ingress  *  *  *  and  of  a  water  course 
therein,  reserving  to  the  owner  of  said  lot  adjoining  to  the  westward  the  right 
of  building  over  the  said  alley  at  the  same  height  and  of  the  same  depth  as 
the  same  is  now  built  over."  A.  later  conveyed  the  west  lot  to  C.  in  fee, 
who  built  over  for  a  greater  depth  than  at  the  time  of  the  above  deed. 
It  was  admitted  that  B.'s  use  of  the  ally  as  a  way  and  water  course 
was  not  prejudiced.  Held,  B.  has  no  cause  of  action  against  C.  Duross  v. 
Singer,  224  Pa.  573,  73  Atl.  951  (1909). 

A.  grants  B.  "the  free  and  undisturbed  right  to  the  use"  of  a  way  over  A.'s 
land.  Held,  A.  may  later  put  a  gate  across  the  way.  Boyd  v.  Bloom,  152  Ind. 
152,  52  N.  E.  751  (1898) ;  Brill  v.  Brill,  108  N.  Y.  511,  15  N.  E,  538  (1887). 
Otherwise  where  the  way  was  over  a  private  alley  in  a  city.  Flaherty  v. 
Fleming,  58  W.  Va.  669,  52  S.  E.  857,  3  L.  R.  A.  (N.  S.)  461  (1905).  Compare 
Ballinger  v.  Kinney,  87  Neb.  342,  127  N.  W.  239  (1910). 

"It  is  true  that  a  way  gained  by  adverse  use  gives  rights  commensurate  with 
the  adverse  use.  But,  if  the  use  be  for  agricultural  purposes  only,  then  the 
way  becomes  a  way  for  that  use — a  use  to  be  exercised  in  a  reasonable  man- 
ner; and  reasonable  use  of  a  way  for  agricultural  purposes,  whether  created 
by  grant  or  adverse  user,  may  properly  be  subjected  to  gates  and  bars  not  un- 
reasonably established.  The  way  may  be  gained  without  being  so  obstructed 
at  all,  but  it  is,  nevertheless,  a  way  for  a  particular  use;  and,  in  the  enjoy- 
ment of  that  use,  unreasonable  obstructions  only  are  prohibited.  The  nature 
of  the  easement  gained  determines  its  character,  and  not  the  particular  man- 
ner of  the  use  that  created  the  right."  Haskell,  J.,  in  Ames  v.  Shaw,  82  Me. 
379,  19  Atl.  856  (1890).  Ace:  Luster  v.  Garner,  128  Tenn.  160,  159  S.  W.  604, 
48  L.  R.  A.  (N.  S.)  87,  Ann.  Cas.  1914D,  769  (1913).  Contra:  Fankboner  v. 
Corder,  127  Ind.  164,  26  N.  E.  766  (1891).  Compare  McMillan  v.  Cronin,  75 
N.  Y.  474  (1878) ;   Bolton  v.  Murphy,  41  Utah,  591,  127  Pac.  335  (1912). 

If  the  gate  is  a  proper  one,  the  dominant  is  under  the  duty  of  keeping  it 
closed.     Damron  v.  Justice,  162  Ky.  101,  172  S.  W.  120  (1915). 

38  The  statement  of  facts  is  abridged  and  part  of  the  opinion  Is  omitted. 


Ch.  2)  EASEMENTS  229 

and  by  proceedings  to  condemn  it  for  railroad  purposes.  The  defend- 
_ants  contended  that,  if  the  plaintiffs  did  actually  condemn  the  strip 
of  ground  in  question,  they  could  not  recover  in  ejectment,  for  the 
reason  that  they  did  not  acquire  a  fee  in  the  ground,  but  only  an. 
easement,  and  that  ejectment  will  not  lie  for  a  mere  right  of  way. 
The  vice  of  this  argument  consists  in  treating  the  plaintiff's  right  as 
a  mere  easement  or  right  of  way.  It  is  a  great  deal  more  than  a  right 
of  way.  They  have  the  actual  possession  of  the  property,  and  that^ 
possession  is  exclusive,  at  all  tunes  and  for  all  purposes,  except  where 
a  way  crosses  it.  Railway  Co.  v.  Hummell,.  44  Pa.  375,  84  Am.  Dec. 
457;  Railroad  Co.  v.  City  of  Philadelphia,  88  Pa.  424.  The  estate 
acquired  by  a  railroad  company  by  a  condemnation  of  land  is  often 
spoken  of  as  an  "easement,"  but  the  term  is  used  in  a  loose  way,  for 
the  purpose  of  distinguishing  it  from  a  "fee." 

In  the  recent  case  of  Pennsylvania  S.  V.  R.  Co.  v.  Reading  Paper 
Mills,  149  Pa.  18,  24  Atl.  205,  it  was  said  by  our  Brother  Mitchell: 
"Such  title  is  sometimes  called  an  'easement,'  but  it  is  a  right  to  ex- 
clusive  possession, — to  fence  in,  to  build  over  the  whole  surface,  to 
raise  and  maintain  any  appropriate  superstructure,  including  neces- 
sary foundations,  and  to  deal  with  it  within  the  limits  of  railroad  uses 
as  absolutely  and  as  uncontrolled  as  an  owner  in  fee.  There  was 
no  such  easement  at  common  law,  and  it  may  well  be  doubted  if  it  is 
not  a  misnomer  to  extend  to  this  newly-invented  interest  in  land  the 
name  of  'easement,'  perhaps  appropriate  enough  to  the  railroad's  ordi- 
nary right  of  way  for  its  tracks.  It  would  seem  to  be  rather  a  fee  in 
the  surface  and  so  much  beneath  as  may  be  necessary  for  support, 
though  a  base  or  conditional  fee,  terminable  on  the  cesser  of  the  use 
for  railroad  purposes.  But,  whatever  it  may  be  called,  it  is,  in  sub- 
stance, an  interes,t  in  the  land,  special  and  exclusive  in  its  nature,  and 
which  may  be  the  subject  of  special  injury  by  the  obstruction  of  ac- 
cess to  the  abutting  street,  and  therefore  within  the  rule  which  gov- 
erns the  application  of  equitable  relief.  The  right  of  exclusive  posses- 
.sion  includes  the  right  of  ingress  and  egress  from  ,the  street,  and  in 
this  respect  the  injury  is  exactly  the  same  as  to  a  tenant  for  life  or 
for  years,  whose  right  to  relief  would  be  unquestionable,  and  is  en- 
tirely different  from  the  general  right  of  the  public  to  pass  along  the 
street."     *     *     * 

By  the  appellants'  second  point,  the  court  below  was  asked  to  in- 
struct the  jury  as  follows :  "That,  there  being  no  evidence  in  the  case 
of  any  necessity  for  the  use  of  the  property  in  question,  or  of  any 
interfefence  by  its  present  use  with  the  operations  of  their  railroad 
company,  the  railroad  company  cannot  recover  in  an  action  of  eject- 
ment." This  point  was  properly  refused.  When  a  railroad  company 
condemns  land,  it  is  of  necessity  the  judge  of  how  much  is  required 
for  its  use.  If  this  question  were  submitted  to  a  jury  in  every  case, 
the  right  of  erninent  domain  would  be  of  little  practical  value.  The 
company  had  a  right,  when  it  condemned  the  property,  to  regard  and 


230  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

make  provision  for  its  future,  as  vvell  as  its  present  needs.  This  is 
settled  law.  It  is  sufficient  to  refer  to  Pittsburgh  Junction  R.  Co.'s 
Appeal,  122  Pa.  530,  6  Atl.  564,  9  Ain.  St.  Rep.  128.  If  it  condemns 
for  future  use  land  which  it  does  not  need  at  the  time,  the  nonuser  of 
a  portion  for  present  purposes  cannot  be  held  to  be  an  abandonment. 
We  are  of  opinion  that,  under  the  evidence  in  the  case,  the  court  be- 
low was  justified  in  directing  a  verdict  in  farvor  of  the  plaintiffs. 
Judgment  affirmed.^® 


ATLANTIC  COAST  LINE  R.  CO.  v.  BUNTING. 
(Supreme  Court  of  North  Carolina,  1915.     16S  N.  C.  579,  84  S.  E.  1009.) 

Appeal  from  Superior  Court,  Pitt  County ;   Peebles,  Judge. 

Action  by  the  Atlantic  Coast  Line  Railroad  against  J.  R.  Bunting. 
From  a  judgment  for  plaintiff,  defendant  appeals.    Reversed. 

Civil  action  to  enjoin  erection  of  a  brick  building  on  plaintiff's  right 
of  way,  heard  on  return  to  preliminary  restraining  order.  On  the 
hearing,  the  restraining  order  was  made  permanent,  and  enjoining 
defendant  from  further  proceeding  with  the  building,  whereupon  de- 
fendant excepted  and  appealed. 

Hoke,  J.  Our  decisions  are  to  the  eft'ect  that  aj;ailroad  ngbt  of  way^. 
when  once  acquired,  may  be  occupied  and  used  by  the  company  to  its 
full  extent,  whenever  the  proper  management  and  business  necessities 
of  the  road  may  so  require,  and  the  company  is  made  the  judge  of 
such  necessity.  Railroad  v.  McLean,"  158  N.  C.  498,  74, S.  E.  461; 
Earnhardt  v.  Railroad,  157  N.  C.  358,  72  S.  E.  1062;  Railroad  v. 
Olive,  142  N.  C.  273,  55  S.  E.  263.  And,  further,  that,  to  "the  ex- 
tent that  the  land  covered  by  the  right  of  way  is  not  presently  re- 
quired for  the  purposes  of  the  road,  the  owner  may  continue  to  oc- 
cupy and  use  it  in  a  manner  not  inconsistent  with  the  full  and  proper 
enjoyment  of  the  easement."  Lumber  Co.  v.  Hines,  126  N.  C.  254, 
35  S.  E.  458 ;  Railroad  v.  Sturgeon,  120  N.  C.  225,  26  S.  E.  779.  Both 
positions  will  be  found  stated  and  approved  in  the  more  recent  cases 
of  Coit  v.  Owenby,  166  N.  C.  136-138,  81  S.  E.  1067,  and  Hendrix 
v.  Railroad,  162  N.  C.  9,  77  S.  E.  1001,  and  it  is  further  established  in 
this  state,  both  by  statute  and  precedent,  that,  when  the  company  has 
acquired  and  properly  entered  on  the  enjoyment  of  its  easement,  the 
further  appropriation  and  use  of  the  right  of  way,  as  indicated,  may 
not  be  destroyed  or  sensibly  impaired  by  reason  of  the  occupation  of 

89  Ace. :   Kansas  &  C.  P.  Ry.  v.  Burns,  70  Kan.  627,  79  Pac.  238  (1905). 

A.  owned  a  house  fronting  on  a  street  with  a  stable  and  yard  in  the  rear, 
the  yard  being  connected  with  the  street  by  an  arched  passageway  under  the 
house.  A.  conveyed  the  rear  lot  to  B.  in  fee,  "together  with  the  exclusive  use 
of  the  said  gateway"  or  passageway,  describing  it  by  metes  and  bounds.  B. 
later  lined  the  passageway  with  boards,  and  converted  it  into  a  book  shop. 
Held,  a:  has  no  cause  of  action.    Reilly  v.  Booth,  L.  R.  44  Ch.  D.  12  (1890). 


Ch.  2)  EASEMENTS  231 

the  owner  or  other  person.  Revisal,  §  388;  Beattie  v.  Railroad,  108 
N.  C.  462,  433,  12  S.  E.  913 ;  Railroad  v.  McCaskill,  94  N.  C.  746. 

A  correct  application  of  these  principles  to  the-  facts  in  evidence, 
about  which  there  is  no  substantial  dispute  between  the  parties,  is, 
in  our  opinion,  against  the  ruling  of  the  court  below  on  the  question 
presented.  From  these  facts,  it  appears  that  plaintiff  is  now  operating 
a  railroad  through  or  by  the  town  of  Bethel,  and  that,  under  its  vari- 
ous charters,  its  right  of  way  extends  for  100  feet  each  way  from  the 
center  of  its  track;  that  formerly  the  town  was  some  further  away, 
but  soon  after  the  completion  of  the  road,  about  1885,  the  business 
portion  was  moved  towards  the  southern  side  of  the  track,  and  a  sub- 
stantial block  of  business  buildings,  including  a  bank,  two  hotels,  and 
some  large  brick  stores,  were  erected  along  said  track  and  fronting 
the  same,  leaving  a  space  of  65  feet  between  said  buildings  and  the 
track,  which  space  was  used  as  a  public  street  known  as  Railroad  street, 
tlie  principal  business  street  of  the  town,  and  had  been  since  the 
before  mentioned  date,  1885 ;  that  defendant,  owning  one.  of  the 
lots^  on  this  street,  had  bought  an  old  warehouse  from  the  company 
and  placed  it  on  the  lot  and  had  used  it  as  a  business  house  or  ware- 
Tiause  for  several  years,  till  the  fall  of  1914,  when  he  tore  it  down 
with  intent  to  erect  on  the  lot  a  brick  business  building,  this  being  sub- 
stantially in  line  with  the  buildings  already  along  the  street  and  situ- 
ate, for  some  distance,  on  plaintiff's  right  of  way. 

Tn  making  our  present  decision,  we  must  not  be  understood  as  hold- 
ing that,  under  usual  or  ordinary  circumstances,  the  owner  of  prop- 
erty, subject  to  such  an  easement,  would  be  justified  in  building  a  per- 
manent brick  structure  on  the  plaintiff's  right  of  way,  but  there  is 
nothing  in  this  record  which  shows  or  tends  to  show  that  plaintiff 
company  has  any  present  purpose  of  putting  in  a  double  track,  or  that 
the  proposed  building  will  tend  to  interfere  with  the  proper  and  ef- 
ficient operation  of  the  road,  or  that  it  will  sensibly  increase  the  haz- 
ards incident  to  its  operation,  and,  in  the  absence  of  some  such  evi- 
dence, we  must  hold,  as  stated,  that,  on  the  facts  presented,  there  is 
nothing  to  indicate  that  the  proposed  building  or  its  contemplated  use 
will,  in  any  way,  tend  to  interfere  with  the  "full  and  proper  enjoy- 
ment of  plaintiff's  easement,"  the  test  suggested  in  Coit  v.  Owenby, 
■  supra,  and  the  authorities  cited  in  its  support.  It  was  only  a  business 
building  in  line  with  the  other  buildings  on  the  block,  and,  so  far  as 
appears,  it  did  not  even  sensibly  increase  the  obstruction  to  the  view, 
at  times  desirable  for  the  safe  operation  of  plaintiff's  trains. 

The  case  of  Coit  v.  Owenby  was  cited  on  the  argument  as  authority 
for  the  position  that,  on  the  facts  in  evidence,  the  plaintiff  might  have 
some  proprietary  interest  in  that  portion  of  defendant's  lot  on  the 
right  of  way,  which  it  might  rent  or  lease  for  warehouse  or  other  busi- 
ness purposes  to  some  patron  of  the  road.  Owing  to  the  fact  that 
the  testimony  on  that  point  in  Coit  v.  Owenby,  supra,  was  somewhat 
obscurely  stated,  in  the  case  on  appeal,  the  decision  may,  in  some 


232  RIGHTS  IN  THE   LAND   OF  ANOTHER  (Part  2 

aspects  of  the  evidence,  permit  of  such  an  interpretation  and  we  deem 
it  well,  therefore,  to  say  that,  in  the  case  referred  to,  the  court  never 
intended  to  hold  that  a  railroad  had  the  right  to  rent  out  the  right 
of  way  to  an  individual  for  strictly  personal  or  private  business  pur- 
poses. The  decision  was  made  to  rest  on  that  aspect  of  the  testimony 
which  permitted  the  interpretation  and  tended  to  show  that  the  right 
of  way  had  been  let  to  a  patron  of  the  road  as  a  terminal  'facility 
for  receipt  and  shipment  of  freight,  and  it  was  held  that  the  com- 
pany might  do  this  to  the  extent  that  it  did  not  interfere  with  the 
facilities  for  serving  the  public.  A  railroad  company  would  not  be 
permitted  to  sell  or  farm  out  any  portion  of  its  right  of  way  to  an^ 
individual  for  any  purposes  extraneous  to  its  chartered  rights  and 
duties. 

We  find  there  was  error  in  the  judgment  rendered,  and,  on  the  rec- 
ord, the  same  must  be  reversed.  -?^^k^    Ju^ 

Reversed.*  "^  [^    "^^  ' 

WaIvKER  and  Brown,  JJ.,  dissenting. 


SECTION  3.— EASEMENTS  IN  STRUCTURES 


BROOKS  V.  CURTIS  et  al. 
(Court  of  Appeals  of  New  York,  1872.    50,  N.  Y.  639,  10  Am.  Rep.  545.) 

Appeal  from  judgment  modifying  judgment  in  favor  of  defendants, 
entered  upon  the  decision  of  the  court  at  Special  Term,  and  affirming 
judgment  as  modified. 

Action  to  compel  defendants  to  remove  encroachments  alleged  to 
have  been  placed  by  defendants  upon  the  premises  of  plaintiff,  and 
to  restore  the  property  to  its  former  condition. 

The  parties  own  adjoining  premises  in  the  city  of  Rochester.  In 
1846  Everett  Peck  owned  both  premises.  He  deeded  to  plaintiff  in 
July  of  that  year.  At  that  time  Peck  had  begun  the  construction  of 
a  three-story  brick  building  upon  the  lot.  The  easterly  line  of  the 
premises  conveyed  to  plaintiff  is  thus  given  in  the  deed:    "Beginning 

40  It  has  been  held  that  the  owner  of  the  land  subject  to  a  railroad  right  of 
way  may  not  make  cattle  guards  under  oi;  along  the  roadbed,  Alton  &  S.  E. 
Co.  V.  Baugh,  14  111.  211  (1852) ;  may  excavate  sand  so-  far  as  it  does  not  in- 
terfere with  the  use  of  the  land  for  railroad  purposes,  Vermilya  v.  Chicago,  M. 
&  St.  P.  Ry.  Co.,  66  Iowa,  606,  24  N.  W.  234,  55  Am.  Rep.  279  (1885) ;  may  not 
cultivate  cotton  along  the  right  of  way  against  the  objection  of  the  railroad, 
Wilmot  V.  Yazoo  &  M.  V.  R.  Co.,  76  Miss.  374,  24  South.  701  (1898) ;  may  in- 
stall a  private  crossing  from  one  part  of  his  farm  to  another,  Cincinnati,  H. 
&  D.  R.  Co.  V.  Wachter,  70  Ohio  St.  113,  70  N.  E.  974  (1904). 

A  railroad  company  has  no  right,  as  against  the  owner  of  the  land  through 
which  the  right  of  way  runs,  to  sink  oil  wells  in  the  right  of  way.  Oonsum-, 
ers'  Gas  Trust  Co.  v.  American  Plate  Glass  Co.,  162  Ind.  393,  68  N.  E.  1020 
(1903).  ' 


Ch.  2)  EASEMENTS  233 

at  a  point  on  the  north  of  Buffalo  street  *  *  *  opposite  the 
center  of  the  brick  wall  which  said  party  of  the  first  part  is  now  erect- 
ing as  the  west  wall  of  a  block  of  stores ;  thence  northwardly  through 
the  center  of  said  brick  wall  seventy-nine  feet."  In  1855  plaintiff 
erected  a  three-story  building,  using  the  wall  for  the  east  wall.  In 
1856  the  defendants  acquired  title  from  the  executors  of  Peck  to  the 
other  lot.  In  1866  they  added  two  stories  to  their  building — raising 
the  party  wall  for  that  purpose.  They  also  lowered  the  ceiling  of  the 
upper  story  of  the  building,  as  it  was,  some  six  feet,  letting  the  joists 
into  theoTd  wall,  and  passed  iron  anchors  through  the  wall,  fastened 
on  the  west  face  of  the  wall  by  nuts  and  plates.  The  anchors  were 
inserted  with  the  verbal  consent  of  plaintiff.  The  latter  gave  no  con- 
sent to  raising  the  wall.  After  the  addition  was  completed,  ice  and 
snow  TronTthe  roof  of  defendants'  building  fell  upon  plaintiff's  roof, 
doing  some  damage.    The  trial  court  dismissed  the  complaint. 

The  judgment  of  the  General  Term  was  as  follows:  "Ju^?"^^^^ 
modified  so  as  to  restrain  the  defendants  from  maintaining  their  roof 
in  such  manner  and  of  such  construction  that  the  water  and  snow 
from  it,  and  the  ice  formed  from  the  waters  falling  from  it,  descend 
upon  the  roof  of  the  plaintiff's  adjoining  building.  As  thus  modified, 
judgment  affirmed,  without  costs  of  this  appeal  to  either  party." 

Rapallo,  J.  The  deed  from  Everard  Peck  to  the  plaintiff  states 
tliat  the  wall  in  controversy  was,  at  the  time  of  the  conveyance,  being 
erected  by  Peck  as  the  west  wall  of  a  block  of  stores.  The  center  line 
of  jth^  wall  is,  by  the  deed,  made  the  easterly  boundary  of  the  land 
conveyed,  which  includes  the  land  on  which  the  westerly  half  of  the 
wall  stands.  It  appears  that  Peck's  stores  were  afterward  completed, 
and  the  plaintiff  erected  a  building  upon  his  own  lot,  using  the  wall 
as  a  party  wall,  and  inserting  in  it  the  joists  of  his  building.  Peck 
afterward  conveyed  to  the  defendant,  who  made  the  addition  to  the 
height  of  the  wall. 

We  think  that  the  language  of  the  deed  and  the  acts  of  the  parties 
show  that  it  was  their  intention  that  the  wall  should  be  a  party  wall 
for  the  common  use  of  both  lots.  The  deed  states  that  Peck  was  at 
the  time  erecting  the  wall,  half  of  which  was  conveyed,  and  that 
it  was  to  be  the  west  wall  of  his  block.  This  implies  that  the  wall 
was  not  then  completed,  and  that  Peck  was  to  have  the  right  to  com- 
plete it  and  use  it  as  the  west  wall  of  his  block.  If  the  deed  is  to  be 
treated  as  an  absolute  conveyance,  free  from  any  reservation,  easement 
or  privilege  in  the  co-owner  of  the  wall,  Peck  would  have  had  no  right 
to  proceed  to  complete  it,  or  at  least  that  part  which  was  beyond  his 
line,  after,  the  conveyance.  It  cannot  be  supposed  that  such  was  the 
intention  of  the  parties.  Subsequently  to  this  conveyance  the  wall  has 
been  used  for  more  than  twenty  years  as  a  party  wall. 

Although  land  covered  by  a  party  wall  remains  the  several  property 
of  the  owner  of  each  half,  yet  the  title  of  each  owner  is  qualified  by 


234  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

j;he  easement  to  which  the  other  is  entitled;  and  an  important  ques- 
tion in  this  case  is,  whether  such  easement  includes  the  right  to  in- 
crease the  height  of  the  wall,  provided  such  increase  can  be  made  with- 
out detriment  to  the  strength  of  the  wall  or  to  the  property  of  the 
adjacent  owner. 

This  question,  in  the  absence  of  statutory  regulations  upon  the 
subject,  does  not  seem  to  have  been  distinctly  settled  by  authority ; 
but  the  fact  appears  in  several  of  the  cases  relating  to  party  walls  that 
the  height  had  been  increased,  and  there  is  no  intimation  that  such 
increasie  was  unlawful.  Watt  v.  Hawkins,  5  Taunt  20,  was  an  action 
of  trespass.  The  plaintiff  had  added  to  the  height  of  a  party  wall,  and 
the  defendant  tore  down  the  addition,  for  which  injury  the  plaintiff 
brought  trespass.  The  only  point  decided  was,  that  the  parties  were 
not  tenants  in  common  of  the  land,  and  therefore  the  action  of  trespass 
could  be  maintained.  In  Campbell  v,  Mesier,  4  Johns.  Ch.  335,  8 
Am.  Dec.  570,  a  party  wall,  standing  equally  on  two  lots,  havmg  become 
ruinous,  the  owner  on  one  side,  against  the  will  and  in  spite  of  the 
prohibition  of  the  adjacent  owner,  pulled  down  the  wall  and  rebuilt  it 
higher  than  it  was  originally.  It  was  held  that  the  adjacent  owner 
was  bound  to  contribute  to  the  expense  of  the  new  wall,  but  not  to 
the  extra  expense  of  making  it  higher  than  the  old.  There  is  no  in- 
timation in  the  case  that  the  increase  of  height  was  wrongful.  In 
Partridge  v.  Gilbert,  15  N.  Y.  601,  69  Am.  Dec.  632,  the  new  wall 
built  by  the  defendant  was  not  only  higher,  but  its  foundations  were 
deeper  than  the  old  wall  which  it  replaced.  The  right  to  make  these 
additions  was  not  however  discussed  in  the  case,  and  perhaps  there 
was  no  occasion  to  discuss  it,  the  action  being  brought  by  the  tenant 
of  the  adjacent  lot,  whose  goods  were  injured  in  making  the  repair,  and 
not  by  the  owner. 

In  Eno  V.  Del  Vecchio,  11  N.  Y.  Super.  Ct.  53,  it  was  held  that 
the  owner  on  one  side  of  a  party  wall  might,  for  the  purpose  of  im- 
proving his  own  premises,  underpin  the  foundation  of  the  wall  and 
sink  it  deeper  if  he  could  do  so  without  injury  to  the  building  on  the 
adjoining  lot ;  also,  that  he  might  increase,  within  the  limits  of  his 
own  lot,  the  thickness,  length  or  height  of  the  wall,  if  he  could  do  so 
without  injury  to  the  building  on  the  adjoining  lot.  Whether  he  could 
raise  the  whole  party  wall  higher,  or  whether  any  additional  elevation 
must  be  wholly  within  the  limits  of  his  own  lot,  the  court  expressly 
declined  to  decide. 

We  think  that  the  right  of  either  of  the  adjacent  owners  to  in- 
crease the  height  of  a  party  wall,  when  it  can  be  done  without  injury 
to  the  adjoining  building,  and  the  wall  is  clearly  of  sufficient  strength 
to  safely  bear  the  addition,  is  necessarily  included  in  the  easement. 
No  adjudication  adverse  to  that  right  has  been  referred  to  by  counsel 
or  found  by  us.  'The  party  making  the  addition  does  it  at  his  peril ; 
and  if  injury  results  he  is  liable  for  all  damages.    He. must  insure  the 


Ch.2)       /-^fU^^  EASEMENTS  .  235 

safety  of  the  operation.  But  when  safe  it  should  be  allowed.**  The 
wall  is  devoted  to  the  purpose  of  being  used  for  the  common  benefit 
of  both  tenements.  In  Hendricks  v.  Stark,  37  N.  Y.  106,  93  Am.  Dec. 
549,  it  is  held  that  a  party  wall  is  in  no  sense  a  legal  incumbrance  upon 
either  property;  that  the  mutual  easements  of  adjoining  proprietors 
in  such  walls  are  a_mutual  benefit  to  each,  and  not  a  burden,  but  a  • 
valuable  appurtenant  which  passes  with  the  title  to  the  property.  This 
is  undoubtedly  correct,  provided  each  party  is  allowed  to  derive  from 
the  wall  all  the  benefit  which  it  is  capable  of  affording  without  detri- 
ment to  the  other.  But  if,  though  of  sufficient  strength,  it  cannot  be 
used  by  either  party  in  increasing  the  height  of  his  building,  it  may 
prove  a  serious  injury  to  the  property  of  one  desiring  to  make  that 
improvement ;  an  improvement  which  is  very  usual  and  often  very 
necessary  in  crowded  cities.  The  fairer  view,  and  the  one  generally 
adopted  in  legislative  provisions  on  the  subject  in  this  and  other  coun- 
tries, is  to  treat  a  party  wall  as  a  structure  for  the  common  benefit  and 
convenience  of  both  of  the  tenements  which  it  separates,  and  to  permit 
either  party  to  make  any  use  of  it  which  he  may  require,  either  by 
deepening  the  foundation  or  increasing  the  height,  so  far  as  it  can  be 
done  without  injury  to  thejother.  The  party  making  the  change,  when 
not  required  for  purposes  of  repair,  is  absolutely  responsible  for  any 
damage  which  it  occasions  (Eno  v.  Del  Vecchio,  13  N.  Y.  Super.  Ct. 
17) ;  but  in  so  far  as  he  can  use  the  wall  in  the  improvement  of  his  own 
property  without  injury  to  the  wall  or  the  adjoining  property,  there 
is  no  good  reason  why  he  should  not  be  permitted  to  do  so. 

The  judge  has  found  that  the  wall  was  sufficiently  strong  to  be  of 
the  increased  height  without  any  injury  thereto.  He  has  further  found 
that  the  carrying  up  of  the  wall,  under  claim  of  fight,  was  with  the 

*i  One  of  two  adjoining  party  wall  owners  employed  a  contractor  to  carry  • 
the  party  wall  up  another  story.  During  the  process  of  construction  that 
part  of  the  wall  which  was  being  so  carried  u'p  fell  on  the  roof  of  the  building 
of  the  other  party  wall  owner,  who  thereupon  brought  action  against  the 
owner  so  causing  the  wall  to  be  carried  up.  There  was  no  evidence  that  the 
falling  of  the  wall  was  due  to  any  negligence  in  construction,  or  that  the  wall  ^ 

was  not  proper  for  the  purpose.  The  plaintiff  relied  upon  Brooks  v.  Curtis.  ajo-'o-^fJ^ 
The  court  said  (Gray,  J.):  '"The  argument  is  that  this  language  formulated  The 
rule  of  liability  for  this  case.  The  respondent,  in  his  brief,  says :  'Under  the 
principle  there  enunciated,  the  appellants  had  a  legal  right  to  increase  the 
height  of  the  wall.  But  this  was  a  conditional,  and  not  an  absolute,  right.  The 
condition  is  that  he  insures  the  safety  of  the  operation.' ,  We  think  the  opinion 
in  Brooks  v.  Curtis  [50  N.  Y.  639,  10  Am.  Rep.  545  (1872)]  has  been  quite  misap- 
prehended in  deducing  from  it  any  such  rule  of  absolute  liability,  and  that  the 
language  quoted,  which  is  relied  upon  as  furnishing  the  rule,  should  receive 
no  such   reading.     In   connection   with   the   facts,   it   was   appropriate.    JThe 

_^safety^  there__alludcd' to,  which  the  building  parly  insures,  has  xeference  To 
the^strcngtli  of  the  wall  to  sui^port  the  addition,  or  to  the  manner  of  its 

'construction,  as  furnishing  thereafter  a  possible  source  of  danger  or  of 
nuisance  to  the  adjoining  owner.  It  did  not  mean  safety  against  uncon- 
trollable accidents  or  the  results  of  some  third  party's  negligence.  This  is 
clear  from,  the  reading  of  the  balance  of  the  opinion,  as  well  as  from  a  fair 
consideration  of  the  question  "  Negus  v.  Becker,  143  N.  Y.  303,  308  38  N.  E 
290.  25  L.  E.  A.  667,  42  Am.  St.  Rep.  724  (1894). 


236  "  RIGHTS   IN  THE   LAND  OF   ANOTHER  (Part  2 

knowledge  of  and  without  objection  from  the  plaintiff;  and  that  the 
anchors  were  inserted  with  his  verbal  assent.  We  think  the  judge 
was  right  in  his  conclusion  of  law  that  the  plaintiff  was  not  entitled  to 
relief,  so  far  as  the  carrying  up  of  the  wall  and  insertion  of  the  an- 
chors were  concerned. 

The  court  at  General  Term  however  modified  the  judgment  in 
respect  to  the  roof,  so  as  to  restrain  the  defendants  from  maintaining 
it  of  such  construction  as  to  cause  water,  snow  and  ice  to  fall  upon  the 
roof  of  plaintiff's  building.  This  modification  is  not  appealed  from.  In 
making  it,  the  General  Term  necessarily  held  that  the  Special  Term 
should  not  have  dismissed  the  complaint,  but  should  have  granted 
that  part  of  the  relief  prayed  for  which  is  embraced  in  the  modifica- 
tion, and  should  have  denied  the  residue;  and  it  is  claimed  that  the 
judgment  of  the  General  Term  is  erroneous  in  affirming  the  dismissal 
of  the  complaint  with  the  modification  referred  to.  The  appellant 
is  technically  correct  in  this  claim.  The  more  proper  form  would 
have  been  simply  to  modify  the  judgment,  and  render  such  judgment 
as  the  Special  Term  should  have  rendered.  But  the  objection  is  one 
of  form  merely,  except  so  far  as  the  question  of  the  costs  awarded  at 
Special  Term  is  concerned.  This  being  an  equitable  action,  costs  were 
in  the  discretion  of  the  court  below ;  and  it  had  power,  either  at  Spe- 
cial or  General'  Term,  to  decree  costs  in  favor  of  the  defendants,  al- 
though some  part  of  the  relief  prayed  for  was  granted.  We  will  not 
therefore  disturb  the  judgment  on  that  ground. 

The  judgment  should  be  affirmed,  with  costs.    All  concur. 

Judgment  affirmed.*^ 

42ACC.:  Tate  v.  Fratt,  112  Cal.  613,  44  Pac.  1061  (1896);  Fleming  T. 
Cohen,  186  Mass.  323,  71  N.  E.  563,  104  Am.  St.  Rep.  572  (1004) ;  Dauenbauer 
V  Devine,  51  Tex.  480,  32  Am.  Rep.  627  (1879).  Compare  Watson  v.  Gray, 
14  Ch.  192  (1880) ;  Field  v.  Leiter,  118  111.  17,  6  N.  E.  877  (1886) ;  Fidelity 
Lodge,  No.  59,  I.  O.  O.  F.,  of  New  Castle,  v.  Bond,  147  Ind.  437,  45  N.  E. 
338  46  N  E.  825  (1896) ;  Johnson  v.  Minnesota  Tribune  Co.,  91  Minn.  476,  98 
N.  W.  321  (1904) ;  Calmelet  v.  Sichl,  48  Neb.  505,  67  N.  W.  467,  58  Am.  St. 
Rep.  700  (1896). 

A.  and  B.  were  owners  of  adjoining  lots.  A  wall  stood  wholly  on  A.'s 
land  and  about  9  inches  from  the  boundary.  B.  had  for  over  20  years  used, 
this  wall  to  support  his  house.  A.  erected  a  new  walFoEThls'  own  land,  but 
nearer  the  boundary,  cut  B.'s  joists  slightly,  and  inserted  them  in  the  new 
wall.  The  new  wall  was  higher  than  the  old,  and  B.  later  raised  his  house, 
using  the  higher  part  of  the  wall.  Held,  B.  has  no  right  to  use  the  added 
height  He  has  a  right  of  action  if  he  can  show  that  the  new  wall  is  nearer 
the  boundary  than  the  old  wall.  Barry  v.  Edlavitch,  84  Md,  95,  3§  Atl. 
170,  33  L.  R.  A.  294  (1896). 

A  party  wall  means  a  solid  wall;  consequently,  If  either  owner  attempts 
to  open  windows,  the  other  may  get  damages,  Milne's  Appeal,  81  Pa.  54 
T1876) ;  or  enjoin  him  from  so  doing,  Harber  v.  Evans,  101  Mo.  661,  14  S. 
W.  750,  10  L.  R.  A.  41,  20  Am.  St.  Rep.  646  (1890) ;  or  compel  him  to  close 
the  openings.  Springer  v.  Darlington,  207  111.  238.  69  N.  E.  946  (1904).  Con- 
tra: That  plaintiff  can  get  relief  in  equity,  only  if  he  wishes  to  use  the 
wall.  Reynolds  v.  Union  Savings  Bank,  155  Iowa,  519,  136  N.  W.  529,  49  h. 
R.  A.  (N.  S.)  194  (1912);  Witte  v.  Schasse  (Tex.  Civ.  App.)  54  S.  W.  275 
(1899). 

Whether  either  of  the  adjoining  owners  can  use  the  wall  for  other  pur- 
poses, as  advertising,  depends  upon  the  ownership  of  the  wall;  if  the  one 


Ch.  2)  EASEMENTS  237 


PUTZEL  V.  DROVERS'  &  MECHANICS'  NAT.  BANK. 

(Court  of  Appeals  of  Maryland,  1894.     78  Md.  349,  28  AtL  276,  22  L.  R.  A. 
632,  44  Am.  St.  Rep.  298.) 

Bryan,  J.*^  Selig  G.  Putzell  filed  a  bill  in  equity  against  the  Drov- 
ers' &  Mechanics'  National  Bank  of  Baltimore.  It  was  alleged  that 
the  defendant,  without  right  or  justification,  was  about  to  tear  down 
the  rear  wall  of  the  complainant's  dwelling  house,  and  thereby  render 
it  untenantable,  and  do  him  irreparable  damage.  The  bill  prayed  an 
injunction  to  restrain  the  defendant  from  proceeding  as  alleged,  and 
it  was  accordingly  granted  before  answer.  There  was  also  a  prayer 
for  general  relief.  After  answer  the  defendant  moved  a  dissolution 
of  the  injunction.  Testimony  was  taken  on  both  sides,  and  when  the 
cause  came  to  final  hearing  the  injunction  was  dissolved,  and  the  bill 
dismissed.     Complainant  appealed. 

We  think  that  a  statement  of  the  material  facts  of  the  case  as  they 
appear  to  us  will  sufficiently  show  the  grounds  of  our  opinion,  without 
the  necessity  of  a  discussion  of  the  testimony  of  the  different  witnesses. 
Putzell,  the  complainant,  is  the  owner  of  a  leasehold  interest  for  99 
years,  renewable  forever,  in  a  lot  of  ground  in  the  city  of  Baltimore, 
on  the  west  side  of  Eutaw  street,  between  Fayette  and  Lexington 
streets.  He  acquired  this  property  in  the  year  1866.  For  many  years 
before  his  purchase,  and  ever  since  then,  there  has  been  on  this  lot 
a  substantial  brick  dwelling  house,  which  extended  back  to  its  western- 
most boundary.  The  Drovers'  &  Mechanics'  Bank,  in  the  year  1888, 
became  the  owner  of  a  leasehold  interest  in  a  lot  of  ground  fronting 
on  Fayette  street,  and  running  back  northerly  to  Marion  street,  and 
binding,  for  a  portion  of  its  easterly  line,  on  the  westernmost  bound- 
ary of  Putzell's  lot.  It  is  not  distinctly  stated  in  the  record,  but  this 
leasehold  interest  is  evidently  for  99  years,  renewable  forever.  The 
bank's  lot  and  Putzell's  lot  are  separated  by  a  division  brick  wall, 
which,  by  the  measurements  proved  in  the  case,  is  shown  to  be  built 
partly  on  the  ground  of  one  of  these  parties,  and  partly  on  the  ground 
of.  the  other.  This  wall  has  been  standing  for  a  very  long  time,  cer- 
tainly for  more  than  30  years  before  the  transactions  which  are  the 
subject  of  complaint  in  this  case. 

As  far  as  we  can  ascertain  from  the  testimony,  Putzell's  house,  as 
originally  built,  had  this  division  wall  as  its  rear  wall,  but  the  rear  wall 
was  not  built  higher  than  the  top  of  the  division  wall.  In  1870,  Put- 
zell put  an  additional  story  on  the  back  building,  placing  its  rear  wall 

so  using  owns  that  part  of  the  wall,  he  has  all  the  privileges  of  an  owner, 
save  those  that  interfere  with  the  other's  easement.  Lappan  v.  Glunz,  140 
Mich.  609,  104  N.  W.  26  (1905) ;  Shiverick  v.  R.  J.  Gunning  Co.,  58  Neb.  29, 
78  N.  W,  460  (1899).  If  he  has  only  an  easement,  he  can  do  nothing  outside 
the  scope  of  his  easement.  Berry  v.  Godfrey,  198  Mass.  228,  84  N.  E.  304,  16 
Ti.  R.  A.   (N.  S.)  434  (1908). 

•s  Part  of  the  opinion  is  omitted. 


238  RIGHTS  IN  THE   LAND   OF  ANOTHER  (Part  2 

on  the  top  of  the  division  wall.  This  division  wall  was  used  by  the 
owners  and  occupants  of  the  lot  now  owned  by  the  bank  for  the  pur- 
pose of  designating  the  boundary  line  between  it  and  the  Putzell  lot. 
There  was  evidence  of  the  use  of  it,  also,  for  a  series  of  years,  as  a 
support  for  the  frame  of  a  grape  arbor.  The  bank,  in  the  year  1892, 
commenced  the  erection  of  a  large  six-story  building  for  the  purposes 
of  its  business,  and  in  the  prosecution  of  the  work  proposed  to  take 
down  the  entire  wall  separating  the  two  lots,  and  erect  on  the  same 
line  another  wall  of  sufficient  strength  and  thickness  to  support  the 
new  building,  not  encroaching  on  Putzell's  lot,  and  offering  to  give  him 
the  benefit  of  the  new  wall  as  a  partition  wall  for  the  benefit  of  any 
building  to  be  erected  on  his  lot.  The  question  in  the  case  is  whether 
this  action  on  the  part  of  the  bank  would  be  a  legitimate  exercise  of 
its  rights  of  property. 

No  one  seems  to  know  when  the  wall  in  question  was  built.  In 
all  probability,  the  time  was  beyond  the  limit  of  living  memory.  There 
is  some  reason  to  think  so  from  the  fact  that  the  deeds  which  created 
the  leasehold  interests  in  these  lots  were  executed  towards  the  close 
of  the  last  century,  and  early  in  the  beginning  of  the  present.  It  seems 
to  have  been  erected  for  the  purpose  of  making  the  boundary  be- 
tween the  lots,  and  to  have  been  always  used  for  that  purpose.  The 
soil  of  the  respective  owners  was  covered  by  it ;  and  this  was  the  use 
of  his  soil  which  each  owner  elected  to  make  for  his  own  benefit.  Each 
one  owned  the  portion  of  the  wall  which  was  on  his  own  ground. 
There  seems  to  have  been  no  cessation  of  the  use  of  it,  in  the  way  in 
which  it  was  intended  to  be  used, — that  is,  to  mark  the  boundary  line. 
There  was  no  ouster  of  the  possession  of  the  soil.  Each  coterminous 
proprietor  owns  the  portion  of  the  wall  which  rested  on  his  own 
ground,  as  he  had  continued  to  own  it  from  the  beginning,  and  he  has 
actual  and  beneficial  possession  of  the  soil  by  reason  of  the  occupation 
and  use  of  it  by  means  of  his  portion  of  the  wall.  Surely,  there  could 
not  be  a  more  distinct  and  unequivocal  exercise  of  the  right  of  own- 
ership than  to  build  on  one's  own  land  a  house  or  a  wall,  and  to  use  it 
continuously  for  the  purposes  to  which  it  was  suitable.     *     *     * 

But,  although  there  was  no  amotion  of  the  possession  of  the  owners 
of  the  bank  lot,  it  does  not  follow  that  Putzell  had  not  acquired  some 
rights  to  the  use  of  the  division  wall.  He  had  used  this  wall  for  more 
than  20  years,  as  a  support  to  his  house ;  the  enjoyment  of  it  for  this 
purpose  had  been  notorious,  peaceable,  uninterrupted,  and  "as  of  right." 
Under  these  circumstances,  the  law  considers  that  he  had  a  prescrip- 
tive title  to  the  use  of  it  in  the  manner  in  which  he  had  enjoyed 

The  bank  retained  all  its  rights  in  the  division  wall  which  are  not 
inconsistent  with  the  enjoyment  of  the  easement.  It  was  bound  to 
permit  it  to  be  used  as  a  support  for  Putzell's  house  in  the  accus- 
tomed manner ;  but  this  is  the  limit  of  its  obligation.  It  would  be 
unreasonable  to  deny  to  it  the  right  to  improve  its  own  property  ac- 


Ch,  2)  EASEMENTS  239 

cording  to  its  interests  and  inclinations,  provided  it  did  not  infringe 
the__rights  of  other  persons.  In  fact,  the  wall  which  it  proposed  to 
take  down  was  insufficient  to  support  the  building  which  it  desired  to 
erect.  If  this  should  be  taken  down,  and  another  larger  and  stronger 
one  built  in  its  stead,  it  would  thereby  exercise  its  own  legitimate  rights 
of  property ;  and,  if  it  gave  to  the  adjoining  house  the  same  right  of 
support  in  the  new  wall  which  it  had  in  the  old  one,  it  would  not  in- 
jure its  neighbor.  This  seems  to  us  the  just  settlement  of  this  con- 
troversy. Putzell  may  be  put  to  some  inconvenience  while  the  build- 
nig_is_going  on,  but  this  is  one  of  the  unavoidable  consequences  of  liv- 
mg  in  a  closely-built  city. 

We  have  said  that  each  portion  of  this  division  wall  belonged  in 
severalty  to  the  proprietor  on  whose  ground  it  stood;  but,  even  if 
these  proprietors  had  been  tenants  in  common  of  this  wall,  the  result 
would  not  have  been  practically  different.  In  Bank  v.  Stokes,  9  Ch. 
Div.  12,  Sir  George  Jessel  cites,  with  marked  approval,  Cubitt  v.  Por- 
ter, 8  Barn.  &  C.  257.  He  quoted  as  follows  from  the  opinion  of  Mr. 
Justice  Bay  ley:  "There  is  no  authority  to  show  that  one  tenant  in 
common  can  maintain  an  action  against  the  other  for  a  temporary  re- 
moval of  the  subject-matter  of  the  tenancy  in  common,  the  party  re- 
moving it  having  at  the  same  time  an  intention  of  making  a  prompt 
j;estitution.  It  was  not  a  destruction.  The  object  of  the  party  was 
.  not  that  there  should  be  no  wall  there,  but  that  there  should  be  a  wall 
there  again  as  expeditiously  as  a  wall  could  be  made."  And  in  a  sub- 
sequent part  of  his  opinion  he  says:  "As  I  have  read  the  law  from 
the  statements  of  eminent  judges,  he  [that  is  a  tenant  in  common]  has 
a  right  to  pull  down  when  the  wall  is  neither  defective  nor  out  of 
repair,  if  he  only  wishes  to  improve  it,  or  put  up  a  better  or  handsomer 


one. 


*     *     * 


The  allegations  of  the  bill  of  complaint  were  sufficient  to  give  a 
court  of  equity  jurisdiction,  and  they  justified  the  preliminary  injunc- 
tion. The  complainant  has  not  proved  the  precise  title  to  the  wall  which 
he  alleged,  although  he  lias  proved  a  title  to  a  portion  of  it,  and  an 
.interest  in  the  other  portion  by  way  of  easement.  For  the  reasons 
which  we  have  stated,  we  approve  of  the  dissolution  of  the  injunction, 
and  to  that  extent  the  decree  below  will  be  affirmed.  But  the  right 
to  take  down  the  wall  is.not  absolute  and  unconditional ;  iMs_qualified_ 
in  the  manner  which  we  have  explained  in  a  previous  part  of  this  opin- 
ion. The  bank  is  bound  to  finish  the  division  wall  at  its  own  expense, 
and  to  allow  to  Putzell's  house  the  same  right  of  support  which  it  had 
in  the  old  wall,  and  to  indemnify  him  for  the  necessary  expenses  which 
he  has  incurred,  and  may  incur,  in  protecting  his  property  from  the 
consequences  of  the  removal  of  the  old  wall.  For  failure  to  do  these 
things  it  would  be  liable  to  an  action  at  law.  But  as  a  court  of  equity 
had  jurisdiction  of  this  case,  although  it  could  not  give  the  precise  re- 
lief prayed,  it  was  proper,  according  to  well-settled  principles,  to  do 
complete  justice  between  the  parties,  and  thus  avoid  multiplication  of 


24(>  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

ouits  lu  the  future.  It  ought  to  have  retained  the  bill,  for  the  purpose 
of  settling  and  adjudicating  any  claim  which  may  arise  in  favor  of 
Putzell  against  the  bank,  in  accordance  with  the  principles  which  we 
have  stated.  We  disapprove  of  that  portion  of  the  decree  which  dis- 
misses the  bill. 

Decree  affirmed  in  part,  and  reversed  in  part,  and  cause  remanded 
for  further  proceedings ;  the  costs  in  this  court  to  be  equally  divided  be- 
tween the  parties.** 


SHIRLEY  et  al.  v.  CRABB. 

(Supreme  Court  of  Indiana,  1894.     138  Ind.  200,  37  N.  E.  130,  46  Am.  St. 

Rep.  376.) 

Hackney,  J.*"^  This  action  was  by  the  appellants,  and  its  object 
was  to  quiet  title  to  an  easement.  The  only  question  in  the  case  arises 
upon  an  exception  to  one  conclusion  of  law  stated  upon  the  facts  spe- 
cially found.  From  the  special  finding  it  appears  that,  in  the  year 
1873,  Homan  and  Piersol  owned,  as  joint  tenants,  a  part  of  lot  17, 
block  19,  in  the  town  of  Danville,  fronting  east  42i/^  feet  on  a  public 
street,  and  extending  west  to  an  alley,  with  an  additional  width  upon 
said  alley.  While  so  owning  the  same,  they  erected  thereon  a  double 
building  two  stories  high,  the  division  wall  between  the  two  parts  of 
said  building  being  so  constructed  that  the  center  thereof  was  21% 
feet  south  of  the  north  line  of  said  part  lot,  and  21  feet  north  of  the 
south  line  thereof.  On  the  south  side  of  said  division  wall  was 
constructed  a  stairway  from  said  street  to  a  landing  upon  the  second 
floor  of  said  building,  and  another  stairway  from  the  rear  of  that 
part  of  the  building  on  the  south  of  said  division  line,  and  on  the 
south  of  said  division  wall,  was  so  constructed  as  to  reach  said  landing. 
From  said  landing  was  made  an  entrance  to  the  second  story  of  that 
part  of  said  building  on  the  north  of  said  line,  and  through  said  en- 
trance, and  by  said  stairways,  was  supplied  the  only  means  of  ingress 
and  egress  to  and  from  the  second  story  of  the  part  of  said  building 
north  of  said  division  line.  By  numerous  conveyances  the  appellee 
became  the  owner  of  that  part  of  said  property  lying  south  of  said 
division  line,  subject  to  a  reservation  in  each  deed  of  conveyance  of 
such  right  of  way  over  the  front  and  rear  stairways  so  constructed, 
and  in  a  hall  running  north  and  south  through  the  second  story  of 

44  Contra:  Partridge  v.  Lyon,  67  Hun,  29,  21  N.  Y.  Supp.  848  (1893).  See 
Wallis  V.  First  Nat.  Bank  of  Racine,  155  Wis.  306,  143  N.  W.  Q70  (1913). 

A.  and  B.  were  owners  of  adjoining  buildings  with  a  party  wall.  A.'s  build- 
ing was  destroyed  by  fire ;  the  wall  was  still  adequate  to  support  B.'s  building, 
but,  owing  partly  to  the  fire,  and  partly  to  original  faulty  construction,  was 
not  adequate  to  support  the  building  A.  wished  to  erect.  Held,  A.  may  tear 
down  and  replace  the  wall  by  a  new  party  wall,  being  liable  to  B.  only  for 
negligence.     Lexington  Lodge  v.  Beal,  94  Miss.  521,  49  South.  833   (1909). 

*5  Part  of  the  opinion  is  omitted. 


Ch.  2)  '  EASEMENTS  241 

said  building,  for  the  proper  use  and  occupancy  of  the  second  story 
of  that  part  of  said  building  on  the  north  of  said  division  line.  By 
deeds  of  conveyance  the  appellants  became  the  owners  of  the  real 
estate  north  of  said  division  line,  together  with  said  right  of  way; 
and  before  and  after  such  conveyances  said  stairways  were  continuous- 
ly used  openly  and  freely  for  the  benefit  of  the  appellants'  part  of  said 
building  until  the  28lh  day  of  August,  1891,  when  said  building,  and 
the  parts  thereof  owned  by  both  the  parties  herein,  together  with  said 
stairways,  were  wliolly  destroyed  by  fire,  without  the  fault  of  either 
of  the  parties.  Since  the  destruction  of  said  building  the  appellee  has 
erected  upon  his  part  of  said  real  estate  a  two-story  brick  building, 
occupying  the  entire  width  of  his  said  real  estate,  excepting  one  inch 
along  the  north  line  thereof,  or  along  the  said  dividing  line  between  his 
property  and  that  of  the  appellants.  On  the  north  side  of  the  building 
so  constructed  the  appellee  has  erected  a  stairway  from  said  street 
to  the  second  story  of  said  building.  The  appellants  contemplate  the 
erection,  at  an  early  date,  of  a  two-story  building  of  the  character  of 
that  so  owned  by  them  and  so  destroyed,  and  they  desire  to  avail 
themselves  of  the  use  and  privileges  of  stairways  of  the  character,  and 
for  the  purposes,  of  those  so  existing  prior  to  the  destruction  of  the 
former  building.    The  right  so  desired  is  denied  by  the  appellee. 

Upon  the  facts  found,  the  court  stated,  as  conclusions  of  law  :  First, 
that  the  appellants,  by  their  purchase  and  the  conveyance  to  them, 
acquire3~in  easement  in  the  nature  of  a  right  of  way  over  said  stair- 
wa^sjand  hall  as  they  existed  before  the  destruction  of  said  building; 
and,  second,  that  by  the  destruction  of  said  building  said  easement  was 
wholly  lost  and  extinguished.  It  is  to  this  second  conclusion  that  the 
appellants  except,  and  insist  that  they  held  an  easement  not  to  be 
lost  by  the  destruction  of  the  building.  This  position  necessarily  in- 
volves the  claim  that  the  appellants'  rights  were  more  than  a  license 
to  use  the  stairways  and  halls,  and  that  their  interest  in  the  property 
of  the  appellee  was  an  easement  attaching  to  the  real  estate,  and  con- 
tinuing until  extinguished  by  some  act  of  the  owner  of  that  dominant 
estate.     *     *     * 

We  feel  entirely  certain  that  the  reservation,  in  the  form  in  which 
it  is  brought  to  us,  was  not  intended  to  create  an  interest  in  the  soil; 
and  if  it  possessed  the  quality  of  an  easement,  in  that  it  became  an 
interest  in  real  estate,  it  was  only  to  the  extent  of  affording  the  use 
of  the  stairways"  and  hall  in  the  building  as  it  existed,  and  independ- 
ently of  any  right  to  or  interest  in  the  soil.  If  this  was  the  extent  of 
the  interest,  it  follows  that  the  destruction  of  the  building  destroyed 
the  right  as  effectually  as  if  the  interest  had  been  in  the  soil,  and  the 
floods  had  carried  awaythe  soil;  nothing  would  remain  upon  which 
the  right  couM  operate.  A  new  structure  would  not  recreate  the 
right,  for  such  right  had  been  destroyed,  and  not  simply  suspended,  as 
would  probably  have  been  the  case  if  the  right  had  attached  to  the  land. 
Big. Rights — 16 


242  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

The  case  of  Hahn  v.  Baker  Lodge,  21  Or.  30,  27  Pac.  166,  13  L.  R. 
A.  158,  28  Am.  St.  Rep.  723,  presents  a  stronger  claim  to  a  reviving 
right  than  that  of  the  appellants.  There  the  plaintiff  owned  a  lot 
upon  which  was  erected  a  two-story  building,  the  middle  room  or  hall 
in  the  upper  story  of  which  was  owned  by  the  defendant,  and  used  as  a 
lodge.  The  building  was  destroyed  by  fire.  The  conveyance  to  the 
defendant  contained  no  provision,  in  case  of  such  destruction,  giving 
the  right  to  rebuild.  No  interest  in  the  land  having  been  conveyed,  it 
was  held  that  all  right  was  extinguished.  We  say  the  claim  was  strong- 
er because  there  the  interest  was  an  absolute  ownership ;  here,  at 
most,  it  is  but  an  easement ;  and  in  neither  case  does  it  appear  that  the 
right  extends  to  the  subjacent  soil.  The  distinction  here  marked  was 
established  by  this  court  in  the  case  of  Thorn  v.  Wilson,  110  Ind.  325, 
11  N.  E.  230,  59  Am.  Rep.  209.  It  was  there  held  that  a  contract  under 
which  one  became  the  owner  of  an  upper  story  of  a  building  gave  no 
interest  in  the  land.  It  was  said:  "The  instrument  before  us,  how- 
ever, grants  a  mere  use,  and  not  a  proprietary  interest  in  the  corpus 
of  the  property;  and  upon  such  a  grant  a  proprietary  interest  in  the 
real  estate  itself  cannot  be  recovered."  It  was  also  suggested  that,  in 
case  of  the  destruction  of  the  building,  all  rights  under  the  contract 
would  terminate. 

We  conclude,  .therefore,  that  the  right  of  the  appellants  did  not 
extend  beyond  the  use  of  the  stairways  and  hall,  and  did  not  consist 
of  an  interest  in  the  soil ;  that  no  obligation  rested  upon  the  appellee 
to  rebuild  or  maintain  for  appellants'  use  another  stairway  in  the 
event  of  the  destruction  of  those  m  which  the  interest  was  held;  and 
that,  by  the  destruction  of  the  building  without  the  fault  of  the  ap- 
pellee, the  interest  of  the  appellants  was  extinguished.  The  judgment 
of  the  lower  court  is  affirmed.*^    -,-  ^       J    / 

*8  The  destruction  of  a  party  wall  by  fire  terminates  the  easement.  Bow- 
hay  V.  Richards,  81  Neb.  764,  116  N.  W.  677,  19  L.  R.  A.  (N.  S.)  SS3  (1908) ; 
Sherred  v.  Cisco,  6  N.  Y.  Super.  Ct.  480  (1851);  for  another  part  of  this 
case,  see  post,  p.  246.  Compare  Brondage  v.  Warner,  2  Hill  (N.  Y.)  145  (1841). 
Consequently,  if  either  owner  rebuilds  the  wall  pai'tly  upon  the  land  of  the 
other  owner,  the  latter  may  maintain  ejectment.  Heartt  v.  Kruger,  121  N. 
Y.  386,  24  N.  E.  841.  9  L.  R.  A.  135,  18  Am.  St.  Rep.  829  (1890).  See  Wigford 
V.  Gill,  Cro.  Eliz.  269  (1591). 

An  easement  of  user  or  support  in  a  building  or  party  wall  ends  when  the 
structure  becomes  so  decrepit  that  it  is  reasonably  torn  down  because  of 
its  condition.  McKenna  v.  Eaton,  182  Mass.  346,  65  N.  E.  382,  94  Am.  St. 
Rep.  661  (1902) ;  Partridge  v.  Gilbert,  15  N.  Y.  601,  69  Am.  Dec.  632  (1857) ; 
Fewell  V.  Kinsella  (Tex.  Civ.  App.)  144  S.  W.  1174  (1912).  Compare  Ballard 
V.  Butler,  30  Me.  94  (1849) ;  Riley  v.  Pearson,  120  Minn.  210,  139  N.  W.  361, 
L.  R.  A.  1916D,  7   (1913). 

A.  was  the  owner  of  the  upper  story  of  a  building  and  B.  of  the  lower ;  A. 
having  an  easement  of  support  in  B.'s  part.  B.'s  part  became  ruinous 
through  the  action  of  the  elements,  to  the  damage  of  A.  The  court,  In 
Cheeseborough  v.  Green,  10  Conn.  319,  26  Am.  Dec.  396  (1834),  held  that  A. 
had  no  cause  of  action  against  B.  for  not  repairing,  but  suggested  that  A. 
could  have  relief  in  equity.  In  Jackson  v.  Bruns,  129  Iowa,  616,  106  N. 
W.  1,  3  L.  R.  A.  (N.  S.)  510  (1906),  it  was  held  that  A.  could  not  compel  B. 
to  repair.     See  also  Pierce  v.  Dyer,  109  Mass.  374,  12  Am.  Rep.  716  (1872). 

A.  owned  two  adioining  lots,  on  each  of  which  was  a  two-story  building, 


Ch.  2)  EASEMENTS  243 


DOUGLAS  V.  COONLEY. 

(Court  of  Appeals  of  New  York,  1S9S.     156  N.  Y.  521,  51  N.  E.  283,  66  Am. 

St.   Rep.  5S0.) 

Appeal  from  an  order  and  a  judgment  of  the  late  General  Term  of 
the  Supreme  Court  in  the  Third  Judicial  Department,  entered  Febru- 
ary 27  and  March  8,  1895,  respectively,  reversing  a  final  judgment 
entered  upon  the  decision  and  order  of  the  court  at  Special  Term, 
sustaining  plaintiffs'  demurrer  to  the  defendants'  answer. 

This  action  was  brought  to  recover  the  use  and  occupation  of  a 
certain  stairway  in  common  with  the  defendants,  and  to  restrain  them 
from  interfering  with  such  use  and  occupation. 

The  facts,  so  far  as  material,  are  stated  in  the  opinion. 

Parker,  C.  J.*^  By  his  will,  Henry  B.  Smith  conferred  upon  ex- 
ecutors named  therein  the  power  to  sell  and  convey  his  real  estate. 
It  consisted  in  part  of  a  three-story  building  that  had  three_  stores  on 
the  ground  floor.  The  executors  conveyed  the  middle  store  to  Mar- 
garet A.  Cantwell,  and  the  store  next  adjoining  it  on  the  west  to  this 
defendant  Coonley  and  one  John  Hughes  and  Hughes'  title  has  since  , 
been  acquired  by  the  defendant  Sophronia  C.  Smith.  Between  the 
said  middle  and  west  stores  was  a  wall  that  the  conveyance  made 
a_party .i^all,  and  from  the  street  to  the  upper  rooms  of  the  building, 
immediately  adjoining  this  party  wall  on  the  west  side,  there  was  a 
^stairway  that  was  used  by  the  occupants  of  both  buildings,  it  be- 
ing the  only  mode  of  access  between  the  upper  and  lower  floors  of^ 
either  building.  After  Coonley  and  Hughes  had  become  the  own- 
ers of  the  west  store,  they  undertook  to  confirm  the  alleged  right  of_ 
Margaret  A.  Cantwell  to  use  this  stairway  in  common  with  them- 
selves as  a  means  of  ingress  and  egress  to  and  from  the  two  floors 
above  her  store,  and  to  that  end  executed  a  deed  of  conveyance,  by 

with  stores  below  and  rooms  above.  He  granted  one  to  B.  in  fee  in  tlie  fol- 
lowing language:  "A  certain  lot  of  land  with  the  store  thereon  standing," 
and,  after  describing  the  land,  concluding  as  follows:  "With  a  privilege  in 
the  passage  of  the  adjoining  store,  for  the  purpose  of  passing  and  repassing 
to  the  chambers  of  the  store  hereby  conveyed."  B.'s  store  came  to  X.,  and 
A.'s  to  Y.  X.  tore  down  the  old  store  and  erected  another  building  of  the 
same  size,  connecting  with  the  passage  in  Y."s  store,  just  as  the  old  one 
had.  It  was  admitted  that  X.  did  not  intend  to  abandon  his  easement. 
Held,  he  has  no  right  of  passage  to  and  from  the  new  building.  Cotting  v. 
Boston.  201  Mass.  97,  S7  N.  E.  205  (190S).  Ace:  Day  v.  Walden,  40  Mich. 
575,  10  N.  W.  26  (1881) ;  Taylor  v.  Hampton,  4  McCord  (S.  C.)  96,  17  Am. 
Dec.  710  (1827).  Contra,  as  to  ancient  lights:  Currier's  Co.  v.  Corbett,  2 
Dr.  &  Sm.  355  (1865) ;  Ecclesiastical  Com'rs  v.  I-uno,  L.  R.  14  Ch.  D.  218 
(ISSO).  Compare,  as  to  the  construction  of  the  deed,  Bangs  v.  Farker,  71 
Me.  458   (1880). 

In  general,  as  to  the  loss  of  easement  by  destruction  of  the  dominant 
structure,  see  National,  etc.,  Co.  v.  Donald,  4  H.  &  N.  8  (1859) ;  Weis  v. 
Meyer,  55  Ark.  18,  17  S.  W.  3.39  (1S91) ;  Riefler  &  Sons  v.  Wavne  Storage 
Water  Power  Co..  232  Pa.  282,  81  Atl.  300  (1911);  Southern  Ry.  Co.  v. 
Memphis,  97  Fed.  819.  38  C.  C.  A.  498  (1S99). 

*T  Part  of  the  opinion  is  omitted. 


244  EIGHTS   IN  THE  LAND   OF   ANOTHER  (Part  2 

which,  as  the  complaint  recites,  was  "granted,  sold,  and  conveyed  to 
the  said  Margaret  A.  Ca,ntwell,  her  heirs  and  assigns,  the  right  of 
way  to  pass  and  repass  up  and  down  the  passageway  or  stairway  be- 
tween the  store  owned  by  Margaret  A.  Cantwell  and  of  the  parties 
of  the  first  part  hereto  at  all  times,  in  common  with  the  parties  of 
the  first  part  hereto,  for  the  purpose  of  going  and  returning  to 
and  from  the  rooms  in  the  upper  part  of  said  stores ;  the  party  of 
the  second  part  to  pay  one-half  of  the  expense  of  keeping  the  stairway 
in  repair."  Subsequently,  these  plaintiffs  succeeded  to  the  title  of 
Margaret  A.  Cantwell  in  and  to  the  middle  store;  and  thereafter, 
and  on  the  11th  day  of  January,  1893,  the  entire  building  was  de- 
stroyed by  fire.  The  parties  at  once  reconstructed  the  T)uT!3rngs  on 
the  same  foundation  as  before,  and  united  in  the  construction  between 
the  two  stores  of  a  party  wall  similar  to  the  one  formerly  existing, 
except  as  to  the  doorway  leading  from  the  head  of  the  stairway  to 
the  second  floor  of  the  j^Jaintiffs'  building.  The  plaintiffs  put  in  a 
frame  for  such  doorway  when  the  wall  was  being  constructed,  but 
afterwards  defendants  tore  the  frame  out,  and  built  that  portion  of 
the  wall  up  solid,  thus  preventing  the  plaintiffs  from  obtaining  access 
to  their  premises  by  means  of  the  stairway.  The  defendants,  though 
frequently  requested,  refused  to  permit  the  plaintiffs  to  enjoy  the 
stairway  in  common  with  them. 

It  is  conceded  that,  prior  to  the  destruction  of  the  building  by  fire, 
the  plaintiffs  had  a  legal  right  to  use,  as  they  did,  this  stairway  and 
the  doorway  in  the  party  wall  as  well,  in  common  with  the  defend- 
ants. But  it  is  contended  that  the  effect  of  the  destruction  of  the 
building  by  fire  was  to  destroy  this  easement.  The  diligence  of  coun- 
sel has  not  succeeded  in  bringing  to  light  a  similar  case,  in  this  coun- 
try, nor  have  we  been  more  fortunate.  The  appellate  division  regard- 
ed the  case  as  controlled  by  Heartt  v.  Kruger,  121  N.  Y.  386,  24  N. 
E.  841,  9  L.  R.  A.  135,  18  Am.  St.  Rep.  829.  That  case  is  certainly 
authority  for  the  proposition  that  these  plaintiffs  had  no  right  to  in- 
sist upon  a  reconstruction  of  the  party  wall  or  of  the  stairway.  The 
buildings  having  been  destroyed  without  fault  on  the  part  of  the  de- 
fendants, it  was  their  right  thereafter  to  make  such  use  of  the  land 
as  should  seem  to  them  most  conducive  to  their  interests.  They 
could  not  by  their  own  act  affect  the  plaintiffs'  easement,  but,  an 
outside  force  beyond  the  defendants'  control  having  destroyed  the 
buildings  and  the  major  part  of  the  party  wall,  it  was  within  their 
power  thereafter  to  so  use  the  land  that  the  plaintiffs'  easements  should 
not  be  revived.  Had  they  done  so,  a  situation  would  have  been  pre- 
sented within  the  doctrine  of  Heartt  v.  Kruger,  supra.  But  this  they 
did  not  do.  Instead,  they  united  with  the  defendants  in  constructing  a 
party  wall,  and  rebuilt  the  stairway  in  precisely  the  same  place  as 
before;  and  thus  within  a  comparatively  short  period  of  time  the 
buildings,  so  far  at  least  as  the  stairway  and  party  wall  are  concern- 
ed, were  exactly  the  same  as  if  the  fire  had  never  taken  pla.ce.    And 


Ch.  2)  EASEMENTS  245 

the  question  is,  <iid  this  conduct  of  the  parties  operate  to  revive 
the  easement  that  was  suspended  by  the  destruction  of  the  property? 
If  such  be  the  effect  of  this  action,  the  result  is  certainly  equitable 
and  in  accordance  with  good  conscience.  The  plaintiffs'  predecessor 
in  title,  in  purchasing  the  middle  store,  acquired  the  right  to  use  the 
stairway  and  the  doorway  through  the  party  wall  as  a  necessary 
incident  to  her  enjoyment  of  the  second  and  third  stories  of  her 
building. 

Apparently,  for  the  purpose  of  further  assuring  her  right  to  use 
the  stairway  and  the  doorway  as  well,  a  grant  of  such  right,  presum- 
ably upon  a  good  and  sufficient  consideration,  was  made  to  her  by 
these  defendants.  The  grant  was  not  intended  to  be  a  temporary 
matter,  or  one  purely  for  her  personal  convenience,  for  it  ran  to  her, 
her  heirs  and  assigns.  Why  should  she  or  her  assigns  be  deprived 
of  it  nowf  inasmuch  as  the  situation  of  the  property  is  precisely  the 
same  as  it  was  then?  No  good  reason  has  been  suggested  by  coun- 
sel for  relieving  the  defendants  from  the  easement  which  they  under- 
took to  confirm,  if  not  create.  The  law  afforded  them  an  opportunity 
for  the  destruction  of  the  suspended  easement  by  an  entirely  differ- 
ent method  of  construction;  and  the  reason  of  the  law  is  that,  in 
case  of  the  destruction  of  an  easement  by  the  act  of  God,  then  a 
party  ought  to  be  at  liberty  to  make  the  best  possible  use  of  his  prop- 
erty, and  should  not  be  burdened  with  the  necessity  of  a  reconstruc- 
tion along  the  same  lines.  Presumably,  these  defendants  found  that 
a  reconstruction  of  the  building  upon  the  old  plan  was  the  best  pos- 
sible use  to  which  they  could  put  the  land,  and  now,  that  such  re- 
construction is  accomplished,  they  insist  that  the  other  parties  shall 
not  enjoy  the  easement.  The  plaintiffs  need  not  have  united  with 
the  defendants  in  the  construction  of  the  party  wall,  but  did  so  with 
the  expectatTon,  undoubtedly,  of  enjoying  the  right  supposed  to  be 
jecured  to  them  of  access  to  the  upper  stories  of  the  building.  It 
certainly  seems  but  just  under  all  the  circumstances  that  these  ex- 
pectations should  be  realized,  and  hence  it  becomes  the  duty  of  a 
court  of  equity  to  work  out  that  result,  provided  it  can  be  done  with- 
in established  equitable  principles. 

Mr.  Washburn,  in  his  work  on  the  Law  of  Easements  and  Servi- 
tudes, says,  at  page  568  (page  686,  3d  Ed.) :  "It  may  be  observed  as  a 
well-settled  rule  of  the  civil  law,  which  would  doubtless  be  regarded 
as  a  part  of  the  common  law,  that  if  a  house,  a  wall,  a  water  spout,  or 
anything  of  that  kind  with  which  or  by  which  a  servitude  exists  or  is 
enjoyed,  is  destroyed,  and  the  same  is  afterwards,  within  the  period  of 
prescription,  reconstructed  or  restored,  whatever  may  have  been  the 
servitudes  connected  therewith,  they  are,  by  such  restoration,  reviv- 
ed."   *     *    * 

This  rule,  well  founded  in  reason,  is  applicable  to  this  case,  and 
therefore  it  becomes  the  duty  of  the  court  to  hold  that  the  effect  of  the 


246  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

reconstruction  of  the  buildings,  including  the  party  wall  and  the  stair- 
way as  they  were  before,  operated  to  revive  the  easement  that  had  been 
for  a  time  suspended  by  the  destruction  of  the  former  buildings  by 
fire.     *     *     * 

The  order  appealed  from  should  be  reversed,  and  the  judgment  of 
the  special  term  affirmed,  with  costs.  All  concur,  except  Gray  and 
Barti^ett,  JJ.,  dissenting,  and  Haight,  J.,  absent.     Order  reversed. 


SHERRED  V.  CISCO. 

(Superior  Court  of  City  of  New  YorlJ,  1851.     6  N.   Y.   Super.  Ct.  480.) 

This  was  bill  in  equity,  filed  in  the  supreme  court,  from  whence  the 
cause  was  transferred  to  this  court.  An  answer  was  put  in,  a  replication 
filed,  and  evidence  was  introduced  at  the  hearing  of  the  cause.  The 
facts  disclosed  by  the  pleadings  and  proofs  were  as  follows : 

For  several  years  prior  to  1845,  the  'Complainant,  Sarah  Sherred, 
was  seised  in  fee  of  a  lot  known  as  No.  31,  on  the  easterly  side  of 
Broad  street,  in  the  city  of  New  York ;  and  Richard  Duryee,  in  his 
lifetime,  and  after  his  death,  his  heirs,  were  seised  in  fee  of  the  ad- 
joining lot  on  the  north  side,  known  as  No.  29.  Each  lot  was  cov- 
ered by  a  store  or  warehouse.  The  buildings  were  separated  by  a 
single  brick  wall,  resting  on  a  stone  foundation,  one  half  of  which  was 
upon  the  land  of  Sherred,  and  the.  other  half  on  the  land  of  Duryee. 
The  beams  of  the  two  stores  rested  upon  this  common  or  party,  wall. 
Duryee  had  executed  several  mortgages  on  lot  No.  29,  which  were  duly 
recorded.  Prior  to  July  19,  1845,  Duryee  died,  and  the  mortgagees  to 
whom  three  of  the  mortgages  were  executed,  commenced  proceedings 
for  their  foreclosure  against  Duryee's  heirs  and  the  subsequent  mort- 
gagees. While  the  foreclosure  was  pending,  on  the  19th  of  July,  1845, 
both  of  the  stores,  29  and  31  Broad  street,  were  destroyed-by  fire,  and 
nothing  was  left  of  the  party  wall  except  the  stone  foundation. 

Immediately  after  the  fire,  Sherred  proceeded  to  rebuild  the  store 
on  lot  No.  31,  extending  it  a  little  further  in  depth  than  the  former 
building.  In  rebuilding,  her  contractors  commenced  on  the  stone  foun- 
dation of  the  former  wall  between  the  stores  on  29  and  31,  and  after 
raising  it  with  stone  about  a  foot  higher  than  the  stone  wall  was  be- 
fore, built  upon  it  with  brick,  the  side  wall  of  her  store,  four  stories 
high.  The  new  wall,  built  at  the  sole  expense  of  Sherred,  thus  stood 
one  half  on  her  lot,  and  the  other  half  on  the  Duryee  lot.  Her  store 
was  finished  in  the  fall  of  1845. 

The  bill  charged  that  she  built  this  wall  after  applying  to  Duryee's 
heirs  to  unite  with  her  in  so  doing,  with  their  assent  and  approval,  and 
on  their  agreeing  to  pay  half  the  expense,  if  they  could  obtain  the  mon- 
ey to  rebuild  their  store.  These  statements  were  put  in  issue,  and  were 
not  proved. 


Ch.  2)  EASEMENTS  247 

The  foreclosure  of  Duryee's  mortgag-es  resulted  in  a  decree  for  a 
sale,  under  which  the  defendant  Cisco  became  the  purchaser  of  lot  29, 
for  $15,600,  at  a  sale  made  by  a  master  in  chancery  on  the  27th  of  Jan- 
uary, 1847.  The  master  conveyed  the  lot  to  him  on  the  15th  of  Feb- 
ruary, 1847.  The  defendant,  soon  after  his  purchase,  built  a  warehouse 
or  store  on  lot  29,  and  used  the  wall  so  built  by  Sherred  for  one  of 
the  side  walls  of  his  store,  inserting  tlierein  his  timbers  and  beams. 
The  first  story  of  his  store  extended  to  the  same  depth  as  Sherred's 
new  store,  but  the  upper  stories  did  not  extend  as  far  back  from  the 
street,  by  about  fourteen  feet,  as  Sherred's  store  extended.  As  to  those 
stories,  the  portion  of  the  party  wall  not  used  by  the  defendant,  was 
shown  to  be  a  detriment  to  him,  rather  than  a  benefit. 

Sherred  applied  to  the  defendant  to  pay  half  the  value  of  the  wall 
as  used  by  both  parties,  which  he  declined  to  do,  on  the  ground  that 
he  purchased  and  paid  for  the  half  of  it  standing  on  his  lot,  at  the  mas- 
ter's sale.  There  was  no  proof  tliat  the  defendant  had  any  notice,  till 
after  he  commenced  building,  that  Sherred  had  built  the  party  wall  at 
her  sole  expense,  or  that  she  had  not  been  paid  for  half  of  it,  or  that 
she  claimed  payment  therefor.  It  was  proved  that  the  value  of  the  half 
of  that  part  of  the  party  wall  which  the  defendant  made  use  of  in  con- 
structing his  store,  was  $459.14.  The  value  of  the  entire  wall  built  by 
Sherred  between  upon  the  two  lots,  was  $1,146. 

Sandford,  J,*^  The  plaintiff  relies  entirely  on  the  case  of  Camp- 
bell V.  Mesier,  4  Johns.  Ch.  334,  8  Am.  Dec.  570,  and  6  Johns.  Ch.  21, 
to  sustain  this  suit.  It  was  there  decided,  that  where  there  was  an  old 
party  wall  standing  between  two  houses,  which  had  become  ruinous, 
and  the  owner  of  one  of  the  houses  being  desirous  to  rebuild  his  house, 
after  notice  to  the  owner  of  the  other,  and  a  request  to  him  to  unite  in 
the  work,  took  down  the  old  wall  and  rebuilt  it  on  the  same  site,  with 
and  for  his  new  house,  the  owner  of  the  adjoining  house  was  bound 
to  contribute  ratably  to  the  expense  of  the  new  wall ;  but  not  beyond 
the^extent  of  the  height  and  quality  of  the  old  wall.  It  was  in  effect 
held  also,  when  the  case  was  before  the  chancellor  on  the  equity  re- 
served in  6  Johns.  Ch.  21,  that  a  purchaser  of  the  house  from  the  own- 
er thus  liable,  took  it  subject  to  the  charge  upon  it  for  contribution. 
But  we  suppose  this  was  on  the  ground  that  the  purchaser  was_aware 
of  the  claim  of  his  neighbor  for  contribution  when  he  purchased,  as 
was  apparent  from  his  taking  a  covenant  of  indemnity  in  respect  of 
the  use  of  the  party  v/all,  in  his  deed  of  the  house. 

We  think  this  case  differs  from  Campbell  v.  Mesier,  so  far  that  the 
decision  of  the  latter  is  not  controlling.  In  the  first  place,  the  defend- 
ant bought  his  lot  with  the  new  wall  upon  it  without  notice  of  the 
plaintiff's  claim.  Next,  when  the  wall  in  question  was  built  by  the  plain- 
tiff, there  wasjio  party^wdJ  in  existence.  There  had  been  a  wall,  which 
served  as  a  partition  between  the  two  stores,  (whether  properly  called 

*8  Fart  of  the  opinion  is  omitted. 


248  RIGHTS   IN  THE  LAND   OF  ANOTHER  (Part  2 

A  party  wall  or  not,  in  the  sense  used  by  the  chancellor  in  the  case 
cited,  we  will  not  here  inquire)  but  it  was  destroyed  with  those  stores. 
The  stone  foundation  that  remained  does  not  alter  the  matter.  Either 
party  could  remove  so  much  of  it  as  rested  on  his  ground,  with  the 
rubbish  on  his  lot,  on  preparing  to  rebuild.  Then  the  plaintiff  on  one 
side,  and  the  mortgagees  on  the  other,  Duryee's  heirs  really  having  no 
interest  in  the  subject,  owned  two  adjoining  vacant  lots  in  severalty, 
where  there  had  once  been  a  partition  wall  forming  the  mutual  support 
of  two  adjoining  buildings.  The  plaintiff,  without  notice  to  the  mort- 
gagees, ind  without  their  assent  or  knowledge,  rebuilt  her  store,  and 
placed  the  partition  wall  on  the  site  of  the  former  one.  There  was  no 
"equality  of  right  and  interest"  in  an  existing  wall,  which  it  was  neces- 
sary, for  the  two  houses  then  supported  by  it,  should  be  rebuilt,  and  in 
which  wall  the  parties  "had  an  equal  interest,"  as  was  the  chancellor's 
view  of  the  facts  in  Campbell  v.  Mesier.  These  parties  had  no  such  in- 
terest, for  they  had  no  joint  or  common  interest  whatever.  Each  own- 
ed in  severalty  the  half  of  the  ground  on  which  the  former  wall  stood. 
Neither  was  under  any  obligation  or  duty  to  build  upon  his  lot,  or  to 
suffer  the  other  party  to  place  part  of  a  division  wall  upon  it.  The 
principle  of  contribution  applicable  to  tenants  in  common  of  a  mill, 
and  to  the  discharge  of  a  common  burthen  or  charge  upon  lands  held 
in  common,  is  therefore  not  appHcable  to  this  case ;  and  we  think  it  is 
not  governed  by  the  principle  of  the  chancellor's  decision  in  the  author- 
ity relied  upon  by  the  plaintiff. 

By  the  common  law,  every  owner  of  land  is  his  own  judge  of  the 
propriety  of  building  upon  it  or  leaving  it  vacant;  and  when  he  does 
build,  of  the  manner  and  extent  of  his  buildings.  In  the  absence  of 
statutory  provisions,  he  may  build  with  what  material  he  pleases,  and 
he  is  under  no  obligation  to  give  to  his  neighbor  any  use  or  advantage 
of  his  land,  by  way  of  support,  drip,  or  easement  of  any  description. 
If  a  stranger  dispossess  him,  or  enter  upon  his  unoccupied  property, 
erect  buildings,  and  make  valuable  permanent  improvements  upon  it, 
he  is  not  under  tlie  slightest  obligation  to  recompense  such  stranger  for 
any  portion  of  the  expense,  on  recovering  the  possession  of  the 
land.     *     *     * 

We  perceive  no  ground  upon  which  the  plaintiff  can  maintain  her 
suit,  that  will  not  give  a  like  remedy  for  all  permanent  valuable  erec- 
tions made  in  good  faith,  by  all  persons  on  lands  which  they  do  not 
own.  It  Was  argued  that  the  fact  of  there  having  formerly  been  a  par- 
tition wall,  (which  we  will  call  a  party  wall,)  gives  the  right  to  have 
it  continued  for  all  time  to  come. 

[After  pointing  out  the  objections  to  this  contention:]  It  suffices  to 
say,  that  when  two  owners  of  adjoining  city  lots  unite  in  building  two 
stores  with  a  party  wall,  we  have  no  right  to  infer,  from  that  act,  an 
agreement  binding  upon  them  and  their  heirs  and  assigns  to  the  end 
of  time,  to  erect  another  like  party  wall  at  their  mutual  expense,  when 


Ch.  2)  EASEMENTS  249 

that  one  is  casually  destroyed,  and  so  on,  as  often  as  the  new  one  shares 
the  same  fate.     *     *     * 

But  it  is  said  the  defendant  made  use  of  the  new  wall  when  he  built 
on  his  lot,  and  thus  ratified  it  as  a  party  wall;  and  it  will  be  unjust  to 
permit  him  to  have  the  benefit  of  it  without  making  compensation. 

As  to  the  injustice  alleged,  it  is  very  well  answered  that  the  defend- 
ant bought -this  lot  at  a  judicial  sale;  and,  so  far  as  we  know,  paid  for 
it  all  that  it  was  worth,  including  the  half  wall  then  standing  upon  it, 
and  a  judgment  in  this  syit  compelling  him  to  pay  the  plaintiff  for  the 
same  half,  will  make  him  pay  for  it  twice.  But  whether  that  be  the 
result  of  our  decision,  or  it  have  the  effect  to  give  him  the  half  of  the 
wall  for  nothing,  it  cannot  change  the  rule  of  law  which  governs  the 
case. 

Then  what  is  the  effect  of  his  using  the  party  wall?  He  found  it  on 
his  land,  on  taking  possession.  He  wanted  to  build.  Was  he  to  tear 
it  down,  or  insist  on  the  plaintiff's  removing  the  h?\f  wall,  so  that  he 
could  occupy  his  whole  land?  This  he  might  have  done,  (Wigford  v. 
Gill,  Cro.  Eliz.  269,)  to  her  great  injury,  and  with  probably  no  ad- 
vantage to  himself.  Or  was  he  not  entirely  at  liberty  to  use  as  his 
own,  an  erection  on  the  land  he  had  bought,  without  subjecting  him- 
self to  pay  for  work  done  without  his  request  or  knowledge.  We  think 
he  was.  We  do  not  see  how  the  defendant  is  liable  to  pay  for  half  of 
this  wall,  because  he  used  it,  any  more  than  he  would  have  been  liable, 
if  the  Duryees  had  rebuilt  before  he  bought,  and  had  put  their  beams 
into  the  wall,  without  paying  the  plaintiff  for  it.  Yet  the  prop'^sition 
would  be  at  once  scouted,  that  the  purchaser  of  a  house  in  this  city, 
having  paid  to  the  owner  the  price,  in  good  faith  and  without  notice, 
would  be  liable  to  the  owner  of  ah  adjoining  house,  for  the  unpaid  half 
of  the  cost  of  the  party  wall  which  separated  the  two  tenements.  *  *  * 

Upon  the  whole,  we  are  clear  that  the  plaintiff  is  not  entitled  to  re 
cover,  and  her  bill  must  be  dismissed  with  costs.*" 


7- 

SPAULDING  et  al.  v.  GRUNDY.  /' 

(Court  of  Appeals  of  Kentucky,  1907.     126  Ky.  510,  104  S.  W.  293,  13  L.  R. 
A.   (N.  S.)  149,  128  Am.  St.  Rep.  328,  15  Ann.  Cas.  1105.) 

Carroll,  J."^"  Appellants  are  the  owners  of  a  lot,  with  a  store 
building  thereon,  in  the  city  of  Lebanon.  Appellee  owns  the  adjoin- 
ing lot.  Both  lots  were  formerly  owned  by  one  Ben  Spaulding,  and  the 
parties  to  this  litigation  acquired  their  respective  lots  by  various  con- 
veyances. For  a  considerable  time,  the  buildings  on  both  lots  extended 
back  the  same  distance  from  Main  street;   the  dividing  wall  between 

49ACC.:     Antomarchi's  Eix'r  v.  Russell.  63  Ala.  356,  35  Am.  Rep.  40  (1879); 
Orman  v.  Day,  5  Fla.  385  (1853).     See  List  v.  Hornbrook,  2  W.  Va.  340  (1867) 
'  6  0  Part  of  the  opinion  is  omitted. 


<^(\    ■,;ui,-i^'     'i^'^ 


250  RIGHTS  IN  THE  LAND   OP  ANOTHER  (Part  2 

them  being  recognized  as  a  joint  or  partnership  wall.  Afterwards,  ap- 
pellants' vendors  increased  the  depth  of  their  store  building  by  extend- 
ing the  division  wall  on  the  line  between  the  lots,  and  erected  a  wall 
two  stories  in  height  above  tlie  ground.  The  extension  of  the  partner- 
ship wall  between  the  two  buildings  was  made  by  the  appellants'  ven- 
dors at  their  own  expense,  with  the  expectation,  behef,  and  assurance 
that,  Vhen  appellee  orTTIs  vendors  should  extend  their  building  and 
use  the  wall  erected  by  appellants'  vendors  for  the  purpose  of  building 
on  or  to  it,  they  would  contribute  their  share  of  the  expense  of  erect- 
ing it,  or  pay  to  appellants  one-half  of  the  value  of  the  wall  so  taken 
and  used  at  the  time  it  should  be  used.  Appellee  acquired  title  to  his 
lot  in  1881,  and  since  then  at  various  times  he  has  extended  the  store 
building  on  his  lot,  until  the  storeroom  now  reaches  to  the  end  of  the 
wall  erected  by  appellants'  vendors,  and  is  using  and  utilizing  the  wall 
as  the  eastern  wall  of  his  building.  Appellee  refusing  to  contribute 
anything  to  the  expense  of  erecting  the  wall  made  by  appellants'  ven- 
dors, or  pay  any  part  of  the  value  of  the  wall  used  by  him,  they  brought 
this  action,  seeking  to  recover  from  appellee  one-half  the  value  of  the 
wall  erected  by  their  vendors  and  used  by  him.  To  their  petition  a  de- 
murrer was  sustained,  and  judgment  entered  dismissing  it. 

The  statement  of  the  facts  heretofore  made  is  taken  from  the  peti- 
tion, and  for  the  purposes  of  this  appeal  must  be  accepted  as  true. 
There  was  no  written  or  other  agreement  between  any  of  the  parties 
concerning  the  erection  or  use  of  this  partition  wall,  and  the  point  to  be 
decided  may  be  thus  stated :  Will  a  person,  who  uses  for  his  own  con- 
venience and  benefit  an  adjoining  wall  erected  by  another  person,  be  re- 
quired to  contribute  to  the  vendee  of  the  person  erecting  the  wall  one- 
half,  or  his  fair  proportion  of  the  cost  thereof  ?  The  center  of  the  wall 
erected  by  appellants'  vendors  was  the  dividing  line  between  their  lot 
and  the  adjoining  lot,  now  owned  by  appellee,  and  it  may  be  conceded 
that,  at  any  time  before  appellee  took  possession  of  the  wall  or  com- 
menced to  use  it  as  a  party  or  partnership  wall,  it  might  have  been  re- 
moved by  the  persons  who  erected  it  or  their  vendees.  Appellants,  un- 
der the  conveyances,  became  entitled  to  all  the  rights  in  the  wall  that 
their  vendors  had;  in  other  words,  their  status  was  the  same  as  if  the 
wall  had  been  erected  by  them.  Accurately,  the  question,  narrowed 
down,  resolves  itself  into  this :  If  A.  erects  a  wall,  the  center  line  of 
which  is  the  dividing  line  between  his  property  and  that  of  B.'s  and 
afterwards  B.  uses  the  wall  without  any  agreement  or  arrangement, 
written  or  otherwise,  to  contribute  to  the  expense  of  erecting  the  wall, 
will  the  mere  fact  that  B.  is  using  it  as  one  of  the  walls  of  the  building 
erected  by  him  entitle  A.  to  recover  from  B.  his  proportionate  c6st  of 
the  wall? 

When  appellee  built  up  to  this  wall,  and  used  it  as  one  of  the  ex- 
terior walls  of  his  building,  appropriating  to  himself  the  use  of  the  wall, 
and  enjoying  the  benefits  of  the  labor  and  money  expended  by  the  per- 
sons who  erected  it,  it  would  seem  fair  and  just  that  he  should  be  re- 


Ch.  2)  EASEMENTS  251 

quired  to  contribute  toward  the  cost  thereof.  Numerous  questions 
concerning  party  walls  have  come  before  the  courts,  and  in  many  ma- 
terial particulars  there  is  wide  conflict  and  difference  in  the  opinions 
concerning  the  rights  and  liabilities  of  the  persons  who  erect  the  walls 
and  those  who  use  them.  Generally,  party  walls  are  erected  under  an 
agreement  as  to  their  use,  and  in  many  states  are  regulated  by  statute, 
and  often  an  issue  has  arisen  as  to  whether  these  agreements  are  per- 
sonal to  the  parties  or  covenants  running  with  the  land  and  enforcible 
by  and  against  remote  vendees  of  the  persons  who  made  the  agreement 
at  the  time  the  wall  was  built.  There  was  no  privity  of  contract  re- 
specting this  wall  between  appellants  and  appellee ;  nor  can  it  fairly  be 
said  that  appellee  had  any  connection  with  the  "expectation,  assurance, 
and  belief"  existing  in  the  mind  of  appellants'  remote  vendor  when  he 
erected  this  wall.  But,  back  of  this,  there  stands  out  in  support  of  ap- 
pellants' claim  the  substantial  fact  that  appellee  has  appropriated  to 
his  own  use  a  part  of  this  party  wall  erected  by  appellants'  vendors, 
without  having  paid  anything  therefor.  So  that,  aside  from  any  of  the 
distinctions  that  involve  the  law  of  party  walls  in  obscurity  and  doubt, 
there  remains  the  proposition  strongly  put  in  behalf  of  appellants  that 
justice  and  fair  dealing  demand  that  appellee  should  contribute  to- 
wards the  payment  of  a  wall  that  he  has  used  to  his  advantage  and 
benefit.     *     *     * 

In  Sanders  v.  Martin,  2  Lea  (Tenn.)  213,  31  Am.  Rep.  598,  the  facts 
were  very  similar  to  those  here  presented.  Sanders  and  Martin  owned 
adjoining  lots  in  the  city  of  Memphis,  separated  by  a  party  wall.  The 
houses  were  two  stories  high  without  any  cellar.  Sanders  erected  a 
three-story  brick  house  on  his  lot,  and  used  the  party  wall,  raising  it 
one  story  higher.  He  also,  with  the  consent  of  Martin,  made  a  cellar, 
which  necessitated  underpinning  the  party  wall  by  a  wall  of  the  same 
thickness,  one  half  on  his  lot  and  the  other  half  on  the  lot  of  Martin. 
Sanders  expected  that,  when  Martin  came  to  use  the  cellar *and  raise  his 
house  higher,  he  would  contribute  one-half  the  actual  cost  of  these  im- 
provements. Afterwards  Martin  erected  a  building  on  his  lot,  using 
in  its  construction  the  wall  erected  by  Sanders.  Thereupon  Sanders 
brought  an  action  for  contribution  against  Martin.  In  the  opinion,  the 
court  said:  "The  common  law  is  singularly  obscure  on  this  subject, 
and  the  decisions  few,  conflicting,  and  unsatisfactory.  It  seems  certain 
that  the  common  law  does  not  recognize  the  right  of  the  owner  of  land 
to  compel  the  owner  of  an  adjoining  lot  to  build  a  party  wall ;  nor  can 
either  demand  contribution  from  the  other  for  a  wall  erected  in  whole 
or  in  part  on  the  land  of  such  other  person,  nor  for  any  incidental  bene- 
fit the  latter  may  derive  from  a  wall  erected  entirely  on  the  land  of  the 
builder.  The  authorities  stop  short  of  the  case  before  us,  and  that  is, 
whether,  after  the  wall  has  been  underpinned  and  raised  in  height  by 
one  for  his  own  convenience,  he  can  claim  contribution  from  the  co- 
owner  when  the  latter  actually  uses  these  additions.  In  the  forum  of 
conscience  the  answer  would  at  once  be  that  the  latter  ought  to  pay  the 


252  RIGHTS   IN  THE  LAND   OF  ANOTHER  (Part  2 

former  for  the  benefit  received  by  his. labor  and  expenditure.  The  ar- 
gument of  the  learned  counsel  for  the  defendants  is  that  this  court  is 
governed  by  the  law,  not  by  principles  of  abstract  right;  that  the  de- 
fendant Martin  is  not  entitled  to  treat  any  erection  made  by  a  third 
party  on  his  own  land  as  his  own;  and,  in  fine,  that  the  client  stands 
upon  the  letter  of  the  law,  and  claims  all  he  can  get.  If  one  owner  can 
rebuild  a  party  wall,  which  has  become  dangerous,  and  compel  contri- 
bution, it  is  clearly  upon  the  equitable  and  moral  principle  that  the  ex- 
penditure is  for  the  benefit  of  both,  and  that  the  right  of  easement  is  a 
sufficient  basis  upon  which  to  justify  interference  and  raise  an  implied 
contract.  The  same  basis  exists  where  a  wall  is  added  to  and  actually 
used.  If  both  of  these  parties  had  dug  their  cellars  and  added  addi- 
tional stories  to  their  houses  at  the  same  time,  although  only  one  of 
them  built  the  addition  to  the  party  wall,  a  promise  by  the  other  to  pay 
for  the  moiety  of  the  wall  would  be  implied.  Is  there  any  reason  in  law 
why  the  same  implied  promise  would  not  arise  where,  after  the  addi- 
tion had  been  made  by  one,  the  wall  was  used  by  the  other  ?  The  rela- 
tion of  the  parties  created  by  the  joint  easement  in  the  new  wall  would 
seem  to  be  as  efficient  in  the  case  of  an  addition  to  the  wall  as  in  the 
case  of  rebuilding  the  same  wall.  Upon  the  case  made  in  the  bill,  if 
established  by  the  testimony,  the  complainant  is  entitled  to  re- 
lief.    *     *     *" 

The  conclusion  we  have  reached  is  not  free  from  doubt,  and  is  con- 
trary to  the  views  held  by  a  respectable  number  of  courts ;  but  we  are 
.sf  the  opinion  that  a  person  who  uses  a  wall  erected  on  the  dividing 
rtne  by  the  owner  of  the  adjacent  lot  should  pay  a  reasonable  and  fair 
price  for  the  use  thereof,  estimated  as  of  the  time  when  the  user  takes 
place.  And  this,  although  neither  he  nor  his  vendor  was  a  party  to 
the  erection  of  the  wall,  and  made  no  agreement,  express  or  implied, 
concerning  it. 

The  judgment  is  reversed,  witli  directions  to  proceed  in  conformity 
with  this  opinion."^^ 

ei  "If  a  party,  however,  voluntarily  accepts  and  avails  himself  of  valuable 
services  rendered  for  his  benefit,  when  he  has  the  option  whether  to  accept 
or  reject  them,  even  if  there  is  no  distinct  proof  that  they  were  rendered 
by  his  authority  or  request,  a  promise  to  pay  for  them  may  be  inferred. 
His  knowledge  that  they  were  valuable,  and  his  exercise  of  the  option  to 
avail  himself  of  them,  justify  this  inference.  Abbot  v.  [Inhabitants  of  Third 
School  Dist.  in]  Hermon,  7  Greenl.  (Me.)  118  (1830).  Hayden  v.  Madison, 
7  Greenl.  (Me.)  76  (1830).  And  when  one  stands  by  in  silence  and  sees  valu- 
able services  rendered  upon  his  real  estate  by  the  erection  of  a  structure, 
(of  which  he  must  necessarily  avail  himself  afterwards  in  his  proper  use 
thereof,)  such  silence,  accompanied  with  the  knowledge  on  his  part  that  the 
party  rendering  the  services  expects  payment  therefor,  may  fairly  be  treated 
as  evidence  of  an  acceptance  of  it,  and  as  tending  to  show  an  agreement  to 
pay  for  it."  Devens,  J.,  in  Day  v.  Caton,  119  Mass.  513,  515,  20  Am.  Kep. 
347  (1876). 

See,  also,  Huck  v.  Flentye,  80  111.  258  (1875) ;  Bright  v,  J.  Bacon  &  Sons. 
131  Ky.  848,  116  S.  W.  268,  20  L.  R.  A.  (N.  S.)  386  (1909) ;  Walker  v.  Stet- 
son. 162  Mass.  86,  38  N.  E.  18,  44  Ain.  St,  Rep.  350  (1894). 


Ch.  2)  EASEMENTS  253 


SECTION  4.— EASEMENTS  IN  ARTIFICIAL  WATER 

COURSES 


WOOD  et  al.  v.  WAUD  et  al. 
(Court  of  Exchequer,  1849.     3  Exch,  748.) 

[A  mine  owner  had  for  over  sixty  years  pumped  and  discharged  the 
surplus  water  from  his  mines  through  two_  underground  conduits  or 
"soughs,"  known  as  BowHng  Sough  and  Low  Moor  Sough.  They 
ran  through,  first,  the  land  of  the  defendant,  and  then  that  of  the  plain- 
tiff, and  then  discharge^,  into  a  natural  stream,  called  the  Bowling 
Beck,  which  also  ran  through  the  plaintiff's  land.  The  plaintiff  had 
used  the  water  for  manufacturing  purposes.  The  defendant  so  fouled, 
heated,  and  abstracted  the  water  that  it  was  rendered  unusable  in  qual- 
ity and  msufticient  in  quantity  for  the  use  of  the  plaintiff.  The  plain- 
tiff brings  action  for  the  damages  so  caused.  Further  facts  are  stated 
in  the  opinion.] 

Pollock,  C.  B.''^  *  *  *  'j-^^  remaining  questions  relate  to 
the  two  soughs  called  Bowling  Sough  and  Low  Moor  Sough,  and  are 
very  important,  and  also  novel.  Both  of  these  differ  from  the  BowHng 
Beck  in  three  respects :  that  was  an  immemorial  stream,  a  natural 
stream,  and  flowing  above  ground ;  these  are  not  immemorial,  they  are 
artificial,  and  flowing  under  ground.  They  differ,  also,  between  them- 
selves in  one  respect :  that  one,  the  Bowling  Sough,  was  constructed  in 
the  land  now  belonging  to  the  plaintiffs,  and  part  of  the  water  thereof 
was  used  by  them,  by  a  direct  communication  between  the  sough  and 
the  plaintiffs'  reservoirs,  for  the  purposes  of  the  mill,  before  the  al- 
leged diversion  by  the  defendants ;  the  other,  the  Low  Moor  Sough, 
only  communicated  with  the  Bowling  Beck,  and  not  in  the  plaintiffs' 
land.  Both  agreed  in  one  respect,  that  they  were  diverted  before  the 
waters  flowing  along  them  became  part  of  the  Bowling  Beck 
stream.    *    *    * 

The  Bowling  Sough  and  the  Low  Moor  Sough  being  neither  of.  them 
.natural_w-atercourses, — being  under  ground,  and  not  immemorial, — a 
question  of  some  nicety  and  difficulty  arises  as  to  the  rights  of  the  ri- 
parian proprietors  upon  these  streams,  or  below  their  junction  with  the 
Beck.  This  question  is  not  with  respect  to  their  rights  as  against  the 
owners  of  those  collieries  which  those  soughs  relieve  from  water,  but 
as  to  the  rights  of  those  jproprietors  inter  se ;  and  it  will  be  better  to 
consider,  in  the  first  place,  how  they  would  stand  if  the  streams  were 
not  under  ground.  With  respect  to  a  claim  of  right  as  against  the  col- 
liery owners,  if  it  be  true  that  a  right  was  gained  to  these  streams  by 
the  riparian  proprietors  as  against  them,  in  consequence  of  their  acqui- 
escence for  twenty  years,  by  virtue  of  the  presumption  of  a  grant,  or  of 
Lord  Tenterden's  Act  (2  &  3  Will.  4,  c.  71),  there  would  be  no  diffi- 

5  2  Part  of  the  opinion  is  omitted. 


254  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

culty  as  to  the  right  of  the  riparian  proprietors  as  against  each  other, 
or  other  persons.  But  Mr.  Cowling  admitted  that  a  grant  could  not  be 
presumed,  and  that  he  should  have  great  difficulty  in  establishing  the 
right  under  Lord  Tenterden's  Act. 

This  Court,  as  then  constituted,  much  considered  that  subject  in  the 
case  of  Arkwright  v.  Cell,  5  M.  &  W.  231.  We  have  again  considered 
It,  and  are  satisfied  that  the  principles  laid  down  as  governing  that  case 
are  correct,  and  were  properly  acted  upon  in  it,  by  deciding  that  no  ac- 
tion lay  for  an  injury  by  the  diversion  of  an  artificial  watercourse, 
wTiere,  from  the  nature  of  the  case,  it  was  obvious  that  the  enjo3^ment 
of  it  depended  upon  temporsLvy  circumstances^  and  was  not  of  a  perma- 
nent character,  and  where  the  interruption  was  by  the  party  who  stood 
in  the  situation  of  the  grantor.  The  Court  of  Queen's  Bench,  in  a  sub- 
sequent case,  Magor  v.  Chadwick,  11  A,  &  E.  571,  supported  a  verdict 
for  the  plaintiff,  for  the  disturbance  of  a  right  to  the  enjoyment  of  a 
stream,  under  circumstances  somewhat  similar ;  but  in  that  case  the 
action  was  not  brought  against  the  party  in  whose  land  the  artificial 
watercourse  commenced,  nor  any  one  claiming  under  him,  and  he  had 
not  put  an  end  to  it  by  altering  the  mode  of  working  his  mines ;  but, 
what  is  more  important,  the  action  was  not  brought  for  abstracting, 
but  for  fouling  the  water,  a  species  of  injury  which  does  not  stand  on 
the  same  footing;  for,  though  the  possessor  of  the  mine  might  stop 
the  stream,  it  does  not  follow  that  he,  or  any  other,  could  pollute  it 
whilst  it  continued  to  run ;  and  besides,  from  the  course  which  the  cause 
took  at  Nisi  Prius,  the  precise  question  which  we  have  now  to  consider 
does  not  appear  to  have  called  for  decision.  The  two  cases  are,  there- 
fore, distinguishable ;  and  the  expressions  used  by  the  learned  Judges 
in  that  case,  as  to  the  similarity  of  natural  and  artificial  streams,  are 
to  be  understood  as  applicable  to  the  particular  case. 

We  entirely  concur  with  Lord  Denman,  C.  J.,  that  "the  proposition, 
that  a  watercourse,  of  whatever  antiquity,  and  in  whatever  degree 
enjoyed  by  numerous  persons,  cannot  be  enjoyed  so  as  to  confer  a  right 
to  the  use  of  the  water,  if  proved  to  have  been  originally  artificial,  is 
quite  indefensible" ;  but,  on  the  other  hand,  the  general  proposition, 
that,  under  all  circumstances,  the  right  to  watercourses,- arising  from 
enjoyment,  is  the  same  whether  they  be  natural  or  artificial,  cannot 
possibly  be  sustained.  The  right  to  artificial  watercourses,  as  against 
the  party  creating  them,  surely  must  depend  upon  the  character  of  the 
watercourse,  whether  it  be  of  a  permanent  or  temporary  nature,  and 
upon  the  circumstances  under  which  it  is  created.  The  enjoyment  for 
twenty  years  of  a  stream  diverted  or  penned  up  by  permanent  embank- 
ments, clearly  stands  upon  a  different  footing  from  the  enjoyment  of  a 
flow  of  water  originating  in  the  mode  of  occupation  or  alteration  of  a 
person's  property,  and  presumably  of  a  temporary  character,  and  lia- 
ble to  variation. 

The  flow  of  water  for  twenty  years  from  the  eaves  of  a  house  could 
not  give  a  rigiit  to  the  neighbour  to  insist  that  the  house  should  not  be 
pulled  down  or  altered,  so  as  to  diminish  the  quantity  of  water  flowing 
from  the  roof.  The  flow  of  water  from  a  drain,  for  the  purposes  of 
agricultural  improvements,  for  twenty  years,  could  not  give  a  right  to 


Ch.  2)  EASEMENTS  255 

the  neighbour  so  as  to  preclude  the  proprietor  from  altering  the  level 
of  his  drains  for  the  greater  improvement  of  the  land.  The  state  of 
circumstances  in  such  cases  shows  that  one  party  never  intended  to 
give,  nor  the  other  to  enjoy,  the  use  of  the  stream  as  a  matter  of  right. 
If,  then,  this  had  been  a  question  between  the  plaintiffs  and  the  colliery 
owners,  it  seems  to  us  that  the  plaintiffs  could  not  have  maintained  an 
action  for  omitting  to  pump  water  by  machinery  (and  in  this  the  Court 
of  Queen's  Bench  and  Exchequer  entirely  agree  in  the  case  above  cit- 
ed). Nor,  if  the  colliery  proprietors  had  chosen  to  pump  out  the  water 
from  the  pit,  from  whence  the  stream  flowed  continuously,  and  caused 
what  is  termed  the  natural  flow  to  cease,  could  the  plaintiffs,  in  our 
opinion,  have  sued  them  for  so  doing. 

But  this  case  is  different.  The  water  has  been  permitted  to  flow  in 
an  a rtiflciaF channel  by  the  colliery  owners,  and  for  sixty  years.  And 
the  question  is  one  of  more  difficulty,  whether  the  plaintiffs  can  sue 
another  person,  a  proprietor  and  occupier  of  the  land  above  and 
through  which  the  sough  passes,  not  claiming  under  or  authorized  by 
them,  for  diverting  the  water. 

The  case  of  the  Bowling  Sough  differs  from  the  Low  Moor  Sough  in 
this,  that  the  plaintiffs,  in  1838,  used  the  water  of  the  Bowling  Sough 
where  it  passes  through  their  land,  by  making  a  communication  to  their 
reservoir,  for  working  the  mill.  Have  the  plaintiffs  a  right  to  the  wa- 
ter of  this  sough,  as  described  in  the  third  count  of  the  declaration? 
It  appears  to  us  to  be  clear,  that,  as  they  have  a  right  to  the  use  of  the 
Bowling  Beck,  as  incident  to  their  property  on  the  banks  and  bed  of 
it,  they  would  have  the  right  to  all  the  water  vv^hich  actually  formed 
part  of  that  stream,  as  soon  as  it  had  become  part,  whether  such  wa- 
ter came  by  natural  means,  as  from  springs,  or  from  the  surface  of  the 
hills  above,  or  from  rains  or  melted  snow,  or  was  added  by  artificial 
means,  as  from  the  drainage  of  lands  or  of  colliery  works ;  and  if  the 
proprietors  of  the  drained  lands  or  of  the  colliery  augmented  the 
stream  by  pouring  water  into  it,  and  so  gave  it  to  the  stream,  it  would 
become  part  of  the  current ;  no  distinction  could  then  be  made  between 
the  original  natural  stream  and  such  accessions  to  it. 

But  the  question  arises  with  respect  to  an  artificial  stream  not  yet 
united  to  the  natural  one. 

The  proprietor  of  the  land  through  which  the  Bowling  Sough  flows 
has  no  right  to  insist  on  the  colliery  owners  causing  all  the  waters  from 
their  works  to  flow  through  their  land.  These  owners  merely  get  rid 
of  a  nuisance  to  their  works  by  discharging  the  water  into  the  sough, 
and  cannot  be  considered  as  giving  it  to  one  more  than  another  of  the 
proprietors  of  the  land  through  which  that  sough  is  constructed ;  each 
may  take  and  use  what  passes  through  his  land,  and  the  proprietor  of 
land  below  has  no  right  to  any  part  of  that  water  until  it  has  reached 
his  own  land, — he  has  no  right  to  compel  the  owners  above  to  permit 
the  water  to  flow  through  their  land  for  his  benefit ;  and,  consequently, 
he  has  no  right  of  action  if  they  refuse  to  do  so. 


256  RIGHTS  IN  THE   LAND   OF  ANOTHER  (Part  2 

K  they  polluted  the  water,  so  as  to  be  injurious  to  the  tenant  below, 
the  case  would  be  different. 

We  think,  therefore,  that  the  plaintiffs  have  no  right  of  action  for 
the  diversion  of  that  water.  The  question  as  to  the  Low  Moor  Sough 
is  less  favourable  to  the  plaintiffs,  for  this  sough  does  not  pass  through 
their  land  at  all. 

We  are  of  opinion,  that,  if  the  plaintiffs  would  not  be  entitled  to  the 
water  of  these  soughs  if  above  ground,  their  being  below  ground  in 
this  case  would  probably  make  no  difference.  It  does  not  certainly 
make  a  difference  in  favour  of  the  plaintiffs. 

The  issues  on  the  seventh  and  ninth  pleas  ought,  therefore,  to  be 
found  for  the  defendants, 

[Judgment  on  other  pleas  was  given  for  the  plaintiff,]" 


MASON  V,  SHREWSBURY  &  H.  R.  CO. 
(Court  of  Queen's  Bench,  1871.     L,  R.  6  Q.  B.   Uas.  578.) 

CocKBURN,  C.  J,"  *  *  *  'phe  plaintiff  is  the  owner  of  lands 
to  which  a  stream  called  the  Ashton  Brook  flows  in  its  natural  course. 
Shortly  before  the  commencement  of  the  present  century  a_canal  com- 
pany  obtained  power  of  an  act  of  Parliament  to  divert,  and  under  that 
power  did  in  fact  divert,  at  a  point  in  the  course  of  the  stream  above 
the  plaintiff's  land,  the  greater  part  of  the  water,  while  the  rest  contin- 
ued to  flow  in  its  natural  channel.  In  1847  the  defendants,^  railway 
company,  being  empowered  by  act  of  Parliament,  purchased  the  canaj ; 
and  being  likewise  authorized  by  the  act  to  discontinue  the  use  of  the 
canal,  and  to  fill  up  and  sell  the  bed,  they,  in  1853,  exercised  the  power 
thus  given,  discontinued  the  use  of  the  canal,  discharged  the  water  into 
the  Ashton  Brook,  and  adopted  measures  whereby  the  water  diverted 
from  the  brook  was  again  returned  to  it  at  a  point  above  the  plain- 
tiff's land.  The  effect  of  this  was  to  restore  the  flow  of  the  water,  so 
far  as  the  plaintiff  was  concerned  to  its  pristine  condition,  with  one 
important  exception — the  bed  of  the  stream  had,  owing  to  the  diminish- 
ed scour  of  the  water  during  so  many  years,  become  partially  silted 
up,  so  as  to  be  insufficient  to  carry  off,  not  indeed  the  water  ordinarily 
flowing  down  it,  but  the  water  coming  down  in  times  of  extraordinary 
Jlood.  In  1866  such  a  flood  occurred ;  the  water  overflowed  the  plain- 
tiff's land,  and  did  damage  to  his  crops;  and  in  respect  of  the  dam- 
age thus  done  this  action  is  brought. 

The  question  is,  whether,  under  these  circumstances,  the  plaintiflf  is 

BSAcc:  Greatrex  v.  Hayward,  8  Exch.  291  (1853);  Hanson  v,  MeCue,  42 
Cal,  303,  10  Am.  Rep.  299  (1871);  Mitchell  v.  Parks,  26  Ind.  354  (ISGU). 

64  Part  of  the  opinion  and  the  judgments  read  by  Blackburn,  J.,  are 
omitted. 


Ch.  2)  EASEMENTS  257 

entitled  to  recover.  I  agree  with  my  learned  Brothers  in  thinking 
that  he  is  not.  I  differ  from  them  in  thinking  that  the  question,  wheth- 
er the  plaintiff  has  acquired  any  right  as  against  the  defendants,  turns 
on  the  Prescription  Act  (2  &  3  Wm.  4,  c.  71)  alone.  It  appears  to  me 
to  depend  on  a  principle  of  the  law  relating  to  easements,  which  would 
have  been  equally  applicable  if  the  Act  in  question  had  never  been 
passed. 

The  right  of  diverting  water  which  in  its  natural  course  would  flow 
over  or  along  the  land  of  a  riparian  owner,  and  of  conveying  it  to  the 
land  of  the  party  diverting  it,  the  servitus  aquae  ducendas  of  the  civil- 
ians is  an  easement  well  known  to  the  law  of  this  as  of  every  other 
country.  Ordinarily  such  an  easement  can  be  created,  according  to 
the  law  of  England,  only  by  grant,  or  by  long  continued  enjoyment, 
from  which  the  existence  of  a  former  grant  may  be  reasonably  pre- 
sumed. But  such  a  right  may,  like  any  other  right,  be  created  in  dero- 
gation of  a  prior  right  by  the  action  of  the  legislature.  It  was  thus 
created  in  the  present  instance.  But,  however  it  may  be  called  into  ex- 
istence, the  right  is  essentially  the  same.  The  legal  incidents  connect- 
ed  with  it  are  the  same,  whether  the  easement  is  created  by  grant  or 
by  statutory  enactment.  Now,  it  is  of  the  essence  of  such  an  easement 
that  it  exists  for  the  benefit  of  the  dominant  tenement  alone.  Being 
in  its  very  nature  a  right  created  for  the  benefit  of  the  dominant  own- 
er, its  exercise  by  him  cannot  operate  to  create  a  new  right  for  the 
benefit  of  the  servient  owner.  Like  any  other  right,  its  exercise  may 
be  discontinued,  if  it  becomes  onerous,  or  ceases  to  be  beneficial,  to 
the  party  entitled.  An  easement  like  the  present,  while  it  subjects  the 
owner  of  the  servient  tenement  to  disadvantage  by  taking  from  him  the 
use  of  the  water,  for  the  watering  of  his  cattle,  the  irrigation  of-  his 
land,  the  turning  of  his  mill,  or  other  beneficial  use  to  which  water  may 
be  applied,  may,  on  the  other  hand,  no  doubt,  be  attended  incidentally 
with  equal  or  greater  advantage  to  him,  as  for  instance,  by  rendering 
him  safe  from  the  danger  of  inundation.  JBut  this  will  give  him  no 
right  to  insist  on  the  exercise  of  the  easement  on  the  part  of  the  dom- 
inant owner,  if  the  latter  finds  it  expedient  to  abandon  his  right.  In 
like  manner,  where  the  easement  consists  in  the  right  to  discharge  wa- 
ter over  the  land  of  another,  though  the  water  may  be  advantageous 
to  the  servient  tenement,  the  owner  of  the  latter  cannot  acquire  a  right 
to  have  it  discharged  on  to  his  land,  jfjthe  dominant  owner  chooses  to 
send  the  water  elsewhere,  or  to  apply  it  to  another  purpose.  And  upon 
this  principle,  as  it  appears  to  me,  might  the  case  of  Wood  v.  Waud,  3 
Ex.  748;  18  L.  J.  (Ex.)  305,  have  been  decided  without  reference  to 
the  Prescription  Act  (2  &  3  Wm.  4,  C.  71),  or  to  the  question  as  to 
whether  there  had  been  an  enjoyment  "as  of  right,"  so  as  to  satisfy 
that  statute.  I  prefer  to  rest  my  judgment  on  the  principle — as  it  ap- 
pears to  me,  a  fundamental  one — that  an  easement  exists  for  the  ben- 
efit  of  the  dominant  owner  alone,  an3  that  the  servient  owner  acquires 
Big. Rights — 17 


258  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

no  right  to  insist  on  its  continuance,  or  to  ask  for  damages  on  its  aban- 
donment. 

I  am  far  from  saying  that  the  grant  of  an  easement  might  not  be 
accompanied  by  stipulations  on  the  part  of  the  grantor;  as,  for  in- 
stance, that  the  easement  should  not  be  discontinued  without  his  con- 
sent, or  that  on  its  discontinuance  certain  things  should  be  done.  I 
am  far  from  saying  that  such  a  stipulation  would  not  give  a  right  of 
action.  My  observations  are  intended  to  apply  to  a  case  in  which  noth- 
ing appears  beyond  the  existence  of  an  easement.  In  such  a  case,  it 
appears  to  me  beyond  doubt  that  the  servient  owner  acquires  no  right' 
to  the  continuance  of  the  easement  and  the  incidental  advantages  aris- 
ing to  him  from  it,  if  the  dominant  owner  thinks  proper  to  abandon  it. 

If,  in  the  present  case,  the  Canal  Act  had  made  it  incumbent  on  the 
company  to  continue  the  use  of  the  canal,  or  had  attached  any  specific 
obligations  to  the  contingency  of  its  disuse,  the  case  would  have  been 
different.  But  nothing  of  the  sort  is  to  be  found  in  the  Act.  The 
powers  conferred  by  it  are  permissive;  no  conditions  are  attached  to 
the  discontinuance  of  the  canal ;  the  company  acquire  the  right  to  take 
the  water,  without  more.  The  exercise  of  the  right  is  not  compulsory. 
The  company  may  abandon  its  exercise  if  they  choose.  I  am  at  a 
loss  to  see  how,  under  such  circumstances,  the  plaintiff,  in  derogation 
of  whose  prior  right  the  right  of  the  company  was  given,  can  be  said 
to  have  acquired  a  right  to  insist  on  the  continuance  of  the  easement. 

The  defendants,  having  been  authorized  to  abandon  the  use  of  the 
canal  and  having  in  fact  abandoned  it,  had,  as  it  seems  to  me,  no  al- 
ternative but  to  allow  the  water  to  flow,  undiminished  in  quantity, 
down  the  brook,  in  its  natural  course  to  the  plaintiff's  land.  Their 
right  to  take  the  water  being  limited  to  taking  it  for  the  use  ofjhe 
canal,  they  could  not  have  taken  it  for  a  different  purpose,  or  so  as  t*6 
allow  it  to  run  to  waste.  So  soon  as  they  discontinued  the  use  of  the 
canal,  their  right  to  take  the  water  ceased,  and  the  plaintiff  and  the 
riparian  owners  lower  down  the  stream  again  became  entitled  to  have 
the  whole  of  the  water  descend  to  them  in  its  natural  course ;  and,  if 
the  defendants  had  continued  to  divert  the  water,  would  have  had  le- 
gal ground  of  complaint  and  action;  while  the  defendants  could  not 
have  justified,  inasmuch  as  they  could  not  have  alleged  that  the  water 
was  taken  for  the  purpose  of  feeding  and  maintaining  the  canal.  It 
appears  to  me,  therefore,  quite  clear  that  the  defendants  were  right  in 
restoring  the  water  to  its  natural  quantity  before  it  reached  the  land 
of  the  plaintiff. 

It  is  true  that  the  proximate  cause  of  the  damage  complained  of, 
namely,  the  silting  up  of  the  channel,  so  as  to  render  it  less  capable  of 
carrying  off  the  water  at  a  time  of  flood,  was  brought  about  by  the  act 
of  the  defendants  in  diverting  the  water  of  the  brook.  But  as  this  was 
the  natural  and  necessary  consequence  ,of  the  diversion  of  the  water, 
as  authorized  by  act  of  Parliament,  it  follows  that  this  result  cannot  be 
imputed  to  the  defendants  as  wrongful.     If  it  be  said  that,  having 


Ch.  2)  EASEMENTS  259 

brought  about  this  result,  it  was  incumbent  on  them  to  have  recourse  to 
some  engineering  contrivance  to  prevent  any  damage  in  times  of  flood, 
or  to  restore  the  channel  of  the  stream  to  its  original  condition,  the 
general  reasoning  I  have  before  set  forth  in  respect  of  the  obligations 
of  a  dominant  owner  apply,  as  shewing  that  no  such  duty  was  cast  on 
the  defendants  either  by  the  local  act  or  by  implication  of  law.  In  ad- 
dition to  which,  as  regards  the  restoration  of  the  channel,  it  may  be 
further  observed  that  the  defendants  could  not  have  entered  on  to  the 
plaintiff's  land,  for  the  purpose  either  of  ascertaining  the  condition  of 
the  channel  or  of  restoring  it,  except  by  the  leave  and  license  of  the 
plaintiff.  No  such  leave  and  license  was  ever  given.  Far  from  calling 
on  the  defendants  to  repair  the  bed  of  the  stream,  the  plaintiff  acqui- 
esced in  the  existing  state  of  things  from  the  year  1853,  when  the 
change  took  place,  till  1866,  when  an  extraordinai-y  flood  caused  the 
overflow  of  the  stream.  Till  that  time  neither  he  nor  any  one  else  ap- 
pears to  have  entertained  any  doubt  of  the  capacity  of  the  channel  to 
carry  off  the  water  at  all  times.  The  defendants,  therefore,  were  not 
only  not  called  upon  to  do  anything  to  the  channel,  but  wQuld  not  have 
been  justified  in  doing  so,. 

The  result  is  that  the  plaintiff  is  not  entitled  to  recover,  and  that  our 
judgment  must  be  for  the  defendants. 

Judgment  for  the  defendants. ^^ 


MATHESON  et  ux.  v.  WARD  et  al. 

(Supreme  Court  of  Washington,   1901.     24  Wash.  407,  64  Pac.  520,  85  Am. 

St.   Rep.  955.) 

Mount,  J.^^  The  Dungeness  river  rises  in  the  Olympic  Mountains, 
and  flows  in  a  northerly  course  through  Clallam  county  into  the  Straits 
of  Fuca.  It  is  a  rapid  stream,  and  at  time  of  freshets,  which  occur 
semiannually,  frequently  overflows  its  banks,  and  floods  the  surround- 
ing low  land,  and  does  great  damage  to  cultivated  lands.  Especially  is 
this  true  near  its  mouth.  About  four  miles  south  of  its  mouth,  at  a 
place  known  as  "Potter's  Crossing,"  the  river  forks  into  tliree  branches. 
The  east  branch  is  known  as  "Kurd's  Creek  Channel,"  the  central  or 
main  branch  being  known  as  the  "East  Channel,"  and  the  one  further 
west  as  the  "West  Channel."  Neither  plaintiffs  nor  defendants  own 
any  of  the  land  at  these  forks,  nor  within  one  or  two  miles  thereof, 
but  all  own  lands  further  to  the  north,  which  are  subject  to  the  over- 
flow at  times  of  high  water ;  plaintiff's'  land  being  some  two  miles  from 
these  forks,  and  along  Kurd's  creek  channel,  east  of  the  main  channel, 

5  5  Compare  Burk  v.  Simonsou,  104  Ind.  173,  2  N.  E.  309,  3  N.  E.  S26,  54 
Am.  Kep.  304   (1SS5). 

ou  Part  of  the  opinion  is  omitted. 


2()0  RIGHTS   IN  THE  LAND   OP   ANOTHER  (Part  2  ' 

and  defendants'  lands  being  about  the  same  distance  north,  and  on  the 
west  side  of  the  main  channel.  Some  time  prior  to  the  year  1865  one 
Le  Balister  built  a  wing  dam  somewhere  near  Potter's  crossing,  and 
abolit  opposite  the  head  of  Kurd's  creek  channel,  which  diverted  all 
the  flow  of  water  into  the  East  channel  and  Kurd's  creek  channel,  so 
that  for  a  period  of  30  years  no  water  ran  into  the  West  channel,  ex- 
cept probably  at  times  some  seepage ;  and  this  West  channel  thereby  be- 
came obliterated  as  an  active  channel,  and  near  its  head  trees  and  brush 
grew  in  the  same,  and  banks  were  formed,  so  that  no  water  ran  out  of 
the  river  into  this  channel  except  during  very  high  water.  In  1895  the 
owners  of  lands  on  the  east  side  of  said  river  and  on  Kurd's  creek  chan- 
nel some  two  miles  north  of  Potter's  crossing,  without  the  knowledge 
of  those  living  on  the  west  side,  excavated  at  or  near  said  crossing, 
which  is  the  place  at  which  the  river  forks  as  aforesaid,  a  channel  of 
from  10  to  40  feet  wide,  from  2  to  4  feet  deep,  and  40  to  120  feet  in 
length,  and  placed  a  wing  dam  in  the  main  channel,  so  that  thereafter 
almost  the  entire  stream  was  thereby  diverted  from  Kurd's  creek  chan- 
nel and  the  East  channel  into  the  West  channel.  At  times  of  high  wa- 
ter the  lowlands,  including  the  lands  of  defendants,  were  flooded  and 
badly  damaged  thereby.  In  January,  1900,  defendants,  whOoO\ra  lands 
along  and  near  this  West  channel  to  the  north,  attempted  to  clear  out 
the  driftwood  and  debris  at  and  near  the  forks  as  aforesaid,  in  the  East 
channel,  and  to  close  up  the  West  channel,  and  thereby  turn  the  water 
again  into  Kurd's  creek  and  the  East  channel.  This  action  was  brought 
by  plaintiffs  to  restrain  defendants  from  so  doing.  After  a  trial  by 
the  lower  court,  and  findings  in  favor  of  the  defendants,  and  judgment 
dismissing  the  complaint  and  giving  defendants  affirmative  relief,  plain- 
tiffs appealed. 

It  is  admitted  in  the  cause  that  the  Kurd's  creek  channel  and  the 
East  channel  are  natural  channels,  in  which  the  waters  of  the  Dun- 
geness  river  have  been  accustomed  to  flow  from  time  immemorial.  It 
is  also  admitted  that  from  1865  down  to  1895  no  water  flowed  in  the 
West  channel  except  a  seepage,  and  at  extreme  high  water,  when  the 
Dungeness  river  overflows  it  banks.  *  *  *  Even  if  the  West 
channel  was  a  natural  channel  prior  to  1865,  and  was  then  dammed  up, 
and  the  water  diverted  to  the  East  and  Kurd's  creek  channels,  where 
it  was  confined  for  30  years,  and  this  flow  was  acquiesced  in  by  the 
riparian  owners  and  others  along  the  channels  of  said  river,  this  would 
make  the  East  and  Kurd's  creek  the  natural  channels ;  and  defendants 
and  others  purchasing  and  improving  lands  along  the  old  channel,  and 
relying  upon  the  flow  continuing  in  the  channels  thereby  formed,  could 
not  now  have  their  lands  damaged  by  reason  of  the  .water  being  turned 
back  by  artificial  means  after  that  lapse  of  time.  After  the  lapse  of 
30  years  the  channels  known  as  the  "East"  and  "Kurd's  Creek"  be- 
came natural  channels,  and  the  attempt  of  riparian  or  other  owners 
to  change  the  flow  at  this  late  day  to  the  injury  of  persons  on  the  old 
channel  would  be  unlawful. 


Ch.  2)  EASEMENTS  261 

According  to  the  evidence  it  is  probably  true  that  in  the  year  1865 
one  Le  Bahster,  by  means  of  a  dam  or  embankment,  changed  the  flow 
of  water  out  of  the  West  channel.  Conceding  it  to  be  so,  the  acquies- 
cence by  plaintiffs  and  their  grantors  and  all  riparian  owners  below  the 
point  ol^clivergence  for  a  period  of  30  years  has  now  lost  them  the 
right  to  change  the  flow  from  the  new  into  the  old  channel.  28  Am.  & 
Eng.  Enc.  Law,  p.  964;  Woodbury  v.  Short,  17  Vt.  387,  44  Am.  Dec. 
344;  Ford  v.  Whitlock,  27  Vt.  265;  Ang.  Water  Courses,  §  108h. 
Gould,  Waters,  §  159,  says:  "When  a  stream  flowing  through  a  per- 
son's land  is  diverted  into  a  new  channel,  either  artificially  or  by  sudden 
flood,  affecting  the  rights  of  other  riparian  proprietors  favorably,  and 
the  owner  acquiesces  in  the  new  state  of  the  stream  for  so  long  a  time 
that  new  rights  accrue,  or  may  be  presumed  to  have  accrued,  such  ac- 
.c|uiescence  is  binding,  like  a  public  dedication,  and  the  stream  cannot 
be  lawfully  returned  to  its  former  channel."  No  doubt  the  plaintiffs, 
within  a  reasonable  time  after  such  diversion,  could  have  removed  the 
obstruction  placed  across  the  West  channel  by  Le  Balister;  but  when, 
after  30  years,  they  undertook  to  do  so  by  virtually  making  a  new  chan- 
nel, they  were  invading  the  rights  of  those  below,  who  had  purchased 
lands  and  improved  the  same.  Kurd's  creek  and  East  channels  having 
become  the  natural  channels,  defendants  had  the  right  to  the  natural 
flow  through  the  same.  Likewise,  if  the  West  channel  had  been  open- 
ed without  consent  of  the  lower  owners  by  artificial  means,  and  these 
lower  owners  thereby  suffered  injury  to  their  lands  which  were  under 
cultivation  by  reason  of  the  floods  which  would  not  naturally  flow  over 
their  lands,  they  might  replace  the  embankments,  and  restrain  plaintiffs 
from  interfering  with  the  same.  Ang.  Water  Courses,  §§  333,  334,  428, 
429;  Gould,  Waters,  §  413;  Mathewson  v.  Hoffman,  17  Mich.  420,  43 
N.  W.  883,  6  L.  R.  A.  349;  Manufacturing  Co.  v.  Brush,  43  Vt.  528. 
We  have  carefully  examined  the  record,  and  are  convinced  that  the 
findings  of  the  lower  court  are  correct,  and  in  accordance  with  the 
weight  of  the  evidence,  st     *     *     *  ^.^  J..^  ^  . 

5 7 Ace:  Stiinson  v.  Inhabitants  of  Brookline,  197  Mass.  568,  83  N.  E.  89o, 
16  L.  R.  A.  (N.  S.)  280,  125  Am.  St.  Rep.  382.  14  Ann.  Cas.  907  (1908) ; 
Mathewson  v.  Hoffman,  77  Mich.  420,  43  N.  W.  879,  6  L.  R.  A.  349  (1889).  See 
Woodbury  v.  Short,  17  Vt.  387,  44  Am.  Dec.  344  (1845).  Otherwise  where 
the  actions  of  the  upper  riparian  do  not  show  an  abandonment  of  the  right 
to  have  the  water  flow  througli  the  natural  channel.  Peter  v.  Caswell,  38 
Ohio  St.  518  (1882). 

The  defendant,  a  lower  riparian,  diverted  the  water  into  an  artiticial 
channel  so  that  it  flowed  more  rapidly.  The  plaintiO:',  an  upper  riparian, 
then  built  a  mill  upon  the  stream.  The  defendant  subsequently  restored  the 
stream  to  its  original  channel,  so  that  the  plaintiff's  mill  was  rendered  use- 
less by  the  backed  up  water.  The  court  held,  that  the  plaintiff  could  main- 
tain an  action  for  the  damages  so  caused,  saying: 

"Where  such  diversion  affects  those  above  or  below  unfavorably,  it  re- 
quires fifteen  years  to  give  the  right  to  continue  the  stream  in  the  new 
channel.  But  if  the  diversion  affects  other  proprietors  favorably,  and  the 
party  on  whose  land  the  diversion  is  made  acquiesces  in  the  stream  running 
in  the  new  channel,  for  so  long  a  time  that  new  rights  may  be  presumed  to 
have  accrued,   or  have  in  fact  accrued,   in   faith  of  the  new   state  of   the 


2G2  RIGHTS   IN   THE   LAND   OF   ANOTHER  'Part  2 


KRAY  V.  MUGGLI  et  al. 

(Supreme  Court  of  Minnesota,  1901.     84  Minn.  90,  86  N.  W.  882,  54  h.  K.  A. 
473,  87  Am.  St.  Rep.  332.) 

Brown,  J.'**  This  was  an  action  to  restrain  and  enjoin  defendants 
from  removing  or  destroying  a  certain  milldam  across  Sauk  river  at 
Cold  Springs,  in  Stearns  county.  The  defendants  recovered  in  the 
court  below,  and  plaintiff  appeals  from  an  order  denying  a  new  trial. 
A  former  appeal  in  the  case  is  reported  in  77  Minn.  231,  79  N.  W.  964, 
1026,  1064,  45  L.  R.  A.  218.  The  facts  are  substantially  as  follows: 
In  1856  a  dam  was  built  and  constructed  across  Sauk  river  at  Cold 
Springs,  Stearns  county,  by  the  Cold  Springs  Mill  Company,  which  has 
ever  since,  except  during  a  short  period  in  1865,  when  out  of  repair, 
been  maintained  for  the  purpose  of  developing  water  power  to  propel 
and  operate  mill  machinery.  No  authority  was  obtained  to  so  con- 
struct or  maintain  the  dam  by  application  or  resort  to  legal  proceedings, 
but  the  same  was  so  built  and  constructed  without  special  or  granted 
right,  and  subsequently  maintained  by  the  mill  company  and  its  succes- 
sors for  over  40  years,  \vith  the  acquiescence  and  consent  of  the  owners 
of  riparian  property  affected  thereby,  by  reason  of  which  continued 
maintenance,  and  the  consequent  raising  of  the  level  of  the  water,  and 
the  adverse,  uninterrupted,  and  exclusive  use  of  the  dam  for  said  period 
of  40  years,  the  mill  company  and  its  successors,  Muggli  and  his  grant- 
ors, acquired  the  right  by  prescriptipnto  perpetually  maintain  the  same. 
The  effect  of  the  dam  was  to  raise  the  level  of  the  waters  of  the  river 
to  a  height  of  71/2  feet,  cause  the  same  to  set  back  and  overflow  large  . 
tracts  of  adjacent  land  to  a  distance  of  about  16  miles  up  the  river,  and 
the  formation  of  several  lakes  and  ponds  along  its  course.  By  the  con- 
struction of  the  dam,  and  the  consequent  raising  of  the  level  of  the 
waters  of  the  river,  the  greater  part  of  the  land  described  in  the  com- 
plaint has  since  that  time  been  overflowed  and  rendered  valueless  for 
agricultural  purposes. 

The  defendants,  other  than  defendant  Muggli,  own  land  abutting  upon 
the  river,  and  are  residents  and  freeholders  of  the  towns  through  which 
the  river  runs  and  flows.  Nearly  all  of  said  defendants  and  their  gran- 
tors have  for  more  than  40  years  owned  and  occupied  tlie  lands  so  adja- 
cent to  said  river  and  the  lakes,  and  have  cultivated  and  improved  the 
same  with  reference  to  the  conditions  created  and  caused  by  the  dam  and 
the  increased  quantity  of  water  occasioned  thereby.  Some  of  the  de- 
fendants owned  and  occupied  land  bordering  on  the  river  prior  to  the 
construction  of  the  dam,  and  so  far  as  the  record  in  the  case  shows  at  no 

stream,  the  party  is  bound  by  such  acquiescence,  and  cannot  return  the 
stream  to  its  former  channel."  liedfield,  C.  J.,  in  Ford  v.  Whitlocli,  27  Vt. 
265,  267   (1S55). 

Ace:     Delaney  v.  Boston,  2  Har.   (Del.)  489  (1839). 

0  8  Part  of  the  opinion  is  omitted. 


Ch.  2)  EASEMENTS  2G3 

time  did  they  object  to  the  dam  or  to  its  maintenance.  At  the  time  of 
the  construction  of  the  dam  the  pubHc  dom^iin  in  this  section  of  the 
state  was  unsurveyed.  It  was  subsequently  surveyed,  and  with  refer- 
ence to  the  conditions  existing,  with  the  waters  of  the  river  raised 
above  its  natural  level  71/2  feet,  and  the  lakes  formed  thereby  were 
meandered  in  all  respects  as  though  natural  bodies  of  water.  Some 
time  prior  to  the  commencement  of  this  action  defendant  Muggli,  who 
owns  the  mill  property,  entered  into  a  contract  with  the  other  defend- 
ants by  which  he  attempted  to  sell  and  transfer  to  them  the  right  to 
Jake_out^_anii .remove  the  dam;  such  other  defendants  paying  him  for 
that  right  and  privilege  the  sum  of  $5,000.  It  is  claimed  by  such  de- 
fendants that  by  the  removal  of  the  dam  large  tracts  of  submerged  land 
will  be  reclaimed  and  made  valuable  for  agricultural  purposes.  Acting 
under  this  contract,  such  defendants  threatened  to  take  out  and  remove 
the  dam,  and  this  action  was  brought  to  restrain  them  from  doing 
so.     *     *     * 

Plaintiff  in  this  action  is  in  the  actual  possession,  under  claim  of  title, 
of  land  bordering  on  the  river,  and  has  improved  the  same  with  refer- 
ence to  the  conditions  existing  subsequent  to  the  construction  of  the 
dam.  His  improvements  were  made  in  reliance  upon  the  continuance 
of  such  conditions,  and  that  the  level  of  the  waters  in  the  lakes  would 
remain  as  it  had  existed  for  years  prior  thereto,  and  for  purposes  of  a 
pleasure  resort,  and  for  boating,  fishing,  and  other  amusements,  in  and 
about  which  improvements  he  expended  a  large  sum  of  money,  which 
will  be  practically  a  total  loss  if  the  dam  is  taken  out.  A  portion  of  the 
land  has  been  used  for  the  pasture  of  stock,  and  the  stage  of  water  as 
made  by  the  dam  is  necessary  to  be  maintained  in  order  that  he  may 
fully  enjoy  his  property.  He  placed  a  steamboat  in  the  river  at  Cold 
Springs,  which  boat  is  used  for  transporting  passengers  from  that  point 
to  a  distance  of  about  20  miles  up  the  river;  and,  if  the  waters  are  low- 
ered to  their  stage  before  the  erection  of  the  dam,  the  river  will  be 
made  nonnavigable,  and  the  lakes  almost  wholly  destroye/i.     *     *     * 

WhaFrigHt  in  law  or  equity  has  the  plaintiff  to  insist  upon  the  contin- 
ued maintenance  of  the  dam?  The  right  to  maintain  it  on  the  part  of 
the  mill  company  was  acquired  by  prescription.  The  mill  company,  in 
erecting  it,  obtained  no  express  grant  to  do  so  from  the  riparian  own- 
ers ;  but  the  erection  and  maintenance  thereof  for  more  than  40  years 
created  a  prescriptive  right  to  continue  its  maintenance  perpetually. 
The  inquiry  is,  what  right,  if  any,  accrued  to  the  plaintiff  and  his  gran- 
tors, and  the  other  owners  of  property  bordering  on  the  river  and  the 
lakes  formed  thereby,  as  a  result  from  the  acts  of  the  mill  company  and 
the  acquisition  by  it  of  the  prescriptive  right  to  maintain  the  dam?  The 
riparian  owners  improved  their  property,  erected  their  buildings  and 
fences  with  reference  to'the  artificial  stage  of  the  water  as  made  by  the 
erection  of  the  dam,  and  acquiesced  in  its  maintenance  during  the  time 
necessary  to  create  and  establish  in  the  mill  company  and  its  successors 
the  perpetual  right  to  do  so. 


264  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

It  is  contended  on  the  part  of  plaintiff  that  there  grew  out  of  the 
relations  between  the  parties,  with  respect  to  the  construction  and 
maintenance  of  the  dam,  reciprocal  rights  and  privileges, — the  right 
on  the  part  of  defendants  to  maintain  it,  and  the  right  on  the  part 
of  plaintiff  to  insist  that  it  be  maintained;  while  it  is  contended 
on  the  part  of  defendants  that  the  only  rights  or  privileges  resulting 
from  such  relations  accrued  to  them,  that  they  may  maintain  the  dam 
so  long  as  they  feel  inclined  to  do  so  and  then  destroy  it,  regardless  of 
the  consequences  to  plaintiff  and  other  riparian  owners,  and  that  the 
only  right  or  benefit  which  accrued  to  plaintiff  is  the  very  valuable 
privilege  of  quietly  submitting  to  tlie  wishes  and  pleasure  of  defend- 
ants. We  a^opt  the  contention  of  plaintiff  as  most  in  consonance  with 
the  equity  and  justice  of  the  case.  If  plaintiff  and  his  grantors  acquir- 
ed a  reciprocal  right  to  have  the  dam  maintained,  it  is  not  material  that 
its  removal  will  result  in  less  injury  and  damage  to  them  than  to  de- 
fendants. Prescriptive  rights  find  no  support  in  pecuniary  considera- 
tions. It  is  a  right  or  privilege  appurtenant  and  incident  to  realty,  and 
passes  with  the  title  thereto.     *     *     * 

Smith  V.  Youmans,  96  Wis.  103,  70  N.  W.  1115,  37  L.  R.  A.  285,  65 
Am.  St.  Rep.  30,  is  also  directly  in  point.  It  is  there  held  that  it  is 
but  a  fair  inference  that  riparian  owners,  in  view  of  advantages  that 
might  or  would  accrue  to  them  by  raising  the  level  of  the  waters  of  tlie 
lake  on  which  their  lands  border,  were  induced  to  consent  and  acqui- 
esce therein,  and  in  the  use  of  the  darn  and  waters  as  raised  thereby,  in 
view  of  which  it  was  held  that  the  relations  and  interests  of  the  parties 
thus  originated  and  created  became  fixed  by  prescription,  and  imposed 
upon  each  reciprocal  rights  and  duties.  The  court  said:  "It  has  long 
been  settled  that  the  artificial  state  or  condition  of  flowing  water, 
founded  upon  prescription,  becomes  a  substitute  for  the  natural  condi- 
tion previously  existing,  and  from  which  a  right  arises  on  the  part  of 
those  interested  to  have  the  new  condition  maintained.  The  water 
course,  though  artificial,  may  have  originated  under  such  circumstances 
as  to  give  rise  to  all  the  rights  riparian  proprietors  have  in  a  natural 
and  permanent  stream,  or  have  been  so  long  used  as  to  become  a  natural 
water  course  prescriptively ;  and  when  a  riparian  owner  has  diverted 
the  water  into  an  artificial  channel,  and  continues  such  change  for  more 
than  20  years,  he  cannot  restore  it  to  its  natural  channel,  to  the  injury 
of  other  proprietors  along  such  channel,  who  have  erected  works  or 
cultivated  their  lands  with  reference  to  the  changed  condition  of  the 
stream,  or  to  the  injury  of  those  upon  the  artificial  water  course  who 
have  acquired  by  long  user  the  right  to  enjoy  the  water  there  flowing.'' 
See,  also.  Canton  Iron  Co.  v.  Biwabik  Bessemer  Co.,  63  Minn,  367, 
65  N.  W.  643. 

The  dam  in  question,  having  been  erected  for  the  purpose  of  develop- 
ing power  to  operate  mill  machinery,  must  be  taken  to  be  a  permanent 
obstruciioo;  and,  it  having  existed  and  been  maintained  as  such  for  so 


Ch.  2)  EASEMENTS  265 

great  a  length  of  time,  the  artificial  conditions  created  thereby  must  be 
deemed  to  have  become  the  natural  conditions.  There  is  no  suggestion 
in  the  evidence  that  the  dam  was  placed  in  the  river  for  temporary  pur- 
poses, and,  even  though  it  may  at  one  time  have  been  out  of  repair,  it 
was  nevertheless  originally  intended  as  a  permanent  structure.  The  au- 
thorities all  hold,  as  far  as  our  examination  has  extended,  that  in  such 
cases  the  conditions  arising  from  the  permanent  obstruction,  though  ar- 
tificial to  begin  with,  become  by  long  lapse  of  time  the  natural  condi- 
tions, and  interested  parties  are  bound  by  the  rules  of  law  applicable 
to  such  conditions.  Magor  v.  Chadwick,  11  Adol.  &  E.  571 ;  Beeston  v. 
Weate,  5  El.  &  Bl.  986;  Roberts  v.  Richards,  supra  [50  Law  J.  Ch. 
297]  ;  Mathewson  v.  Hoffman,  supra  \77  Mich.  420,  43  N.  W.  879,  6 
L.  R.  A.  349]  ;  Finley  v.  Hershey,  41  Iowa,  389;  Murchie  v.  Gates,  78 
Me.  300,  4  Atl.  698. 

In  the  case  at  bar  even  nature  herself  became  adapted  to  the  new 
surroundings.  A  native  growth  of  hard-wood  timber  sprang  up  along 
the  shores  of  the  lakes  formed  by  the  raise  of  the  river,  thus  giving  a 
natural  effect  and  appearance  to  the  conditions  created  by  the  dam. 
The  government,  in  the  survey  of  the  lands  in  that  vicinity,  recognized 
jhe  artificial  as  the  natural  state,  arid  surveyed  the  public  lands  with 
reference  to  the  lakes,  meandering  them  precisely  as  other  natural  bod- 
ies of  water  are  surveyed  and  meandered.  There  can  be  no  difference 
on  principle  between  cases  where  the  natural  channel  of  a  stream  is 
changed..and  diverted,  and  those  where  a  permanent  obstruction  is 
placed  therein.  In  either  case  the  rights  of  the  parties  are  essentially 
the  same. 

An  examination  of  the  books  discloses  that  this  same  doctrine  is  ap- 
plied to  public  highways  and  public  parks.  Where  a  highway  or  pub- 
lic park  has  been  laid  out  by  lawful  authority,  or  acquired  by  dedica- 
tion or  prescription,  the  owners  of  property  abutting  thereon  acquire  a 
special  right  in  the  continuance  of  the  park,  street,  or  highway,  as  the 
case  may  be,  of  which  they  cannot  be  deprived  except  by  due  process 
of  law.     *     *     * 

Something  was  said  on  the  argument  with  reference  to  the  right  of 
a  mill  ov/ner  to  abandon  his  mill  and  permit  the  dam  to  become  out  of 
repair  and  finally  destroyed  by  the  elements,  and  the  question  was  sug- 
gested as  to  whether  he  could  be  compelled  to  repair  the  same  or  be 
required  to  maintain  the  dam  after  its  abandonment;  and  it  is  further 
mooted  whether  or  not  the  riparian  owners  would  have  the  right  to  en- 
ter upon  the  mill  owner's  property,  in  the  case  of  his  failure  or  neglect 
to  keep  the  dam  in  repair,  and  put  it  in  order  and  maintain  it  at  their 
own  expense.  These  questions  are  not  involved  in  the  case,  and  we  do 
not  decide  them.  When  they  are  presented  in  any  proper  case,  they 
will  be  taken  up  and  disposed  of  in  the  usual  way.  It  may  be  doubted 
whether  the  mill  owner  could  be  compelled  to  maintain  the  dam  in  good 
repair.  No  principle  of  law  making  it  his  duty  to  do  so  now  occurs  to 
us.     But  it  is  not  so  clear  but  that  the  riparian  owners,  having  acqui- 


266  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

esced  in  the  maintenance  of  the  milldam  for  such  a  length  of  time  as  to 
create  a  pei-petual  right  in  the  mill  owner  to  maintain  it,  out  of  which, 
within  the  authorities  we  have  cited,  grew  the  reciprocal  right  to  insist 
that  it  be  not  disturbed,  and  that  the  water  as  raised  by  the  dam  be  main- 
tained at  its  artificial  height,  would  have  the  right  to  enter  upon  the 
property  and  repair  any  defects  in  the  dam,  and  keep  and  maintain  it 
in  order  and  repair  at  their  own  expense.  But  these  questions  are  not 
before  the  court,  and  we  do  not  decide  them,  nor  do  we  wish  to  be  un- 
derstood as  expressing  any  opinion  with  reference  thereto.  The  action 
is  to  restrain  and  enjoin  defendants  from  taking  any  active  or  affirma- 
tive steps  looking  to  the  removal  of  the  dam,  and  whether  they  may  be 
compelled  by  law  to  keep  it  in  repair  is  not  involved  in  the  determina- 
tion of  the  case.  We  hold  that  they  may  be  restrained  from  commit- 
ting any  overt  act,  and  from  taking  any  affirmative  steps  looking  to  the 
removal  of  the  dam.  Perhaps  the  apparent  difficulties  in  the  matter  of 
keeping  the  dam  in  repair  after  abandonment  by  the  mill  owner  may 
be  relieved  and  obviated  by  an  application  of  the  provisions  of  chapter 
88,  Laws  1897. 

We  have  not  considered  the  question  whether  defendants  could  be  re- 
strained from  taking  out  the  dam  because  of  the  statutes  prohibiting 
the  draining  of  meandered  lakes.  The  disposition  of  the  case  on  the 
other  question  renders  it  unnecessary.  The  order  appealed  from  is  re- 
versed, .^z^t-e^   /^'■^        -^A-tv-       ---LX,.-^,si-<^^<^ 

Start,  C.  J.,  dissents.^® 

5»  A  riparian  cut  a  channel  to  cut  off  a  loop  in  a  stream  flowing  through 
his  land.  A  large  part  of  the  stream  flowed  for  over  30  years  through  the 
artificial  channel,  at  which  time  an  owner  on  the  lower  part  of  the  channel 
erected  a  mill  thereon.  Held,  the  owner  of  the  upper  end  of  the  channel 
cannot,  27  years  after  the  erection  of  the  mill,  turn  the  water  hack  into 
the  natural  channel  to  the  prejudice  of  the  lower  owner.  Shepardson  v. 
Perliins,  58  N.  H.  354  (1S7S).  Ace:  Hollett  v.  Davis,  54  Wasfl.  326,  103 
Pac.  423  (1909).  See,  also,  Burrows  v.  Lang,  [19011  2  Ch.  502 ;  Baily  v.  Clark, 
[1902]  1  Ch.  649;  Murchie  v.  Gates,  78  Me.  300,  4  Atl.  698  (1886);  Lake 
Drummond  Canal  &  Water  Co.  v.  Bumham,  147  N.  C.  41,  60  S.  E.  650,  17 
L.  R.  A.  (N.  S.)  945,  125  Am.  St.  Rep.  527  (1908) ;  Fox  River  Flour  &  Paper 
Co.  V.  Kelley,  70  Wis.  287,  35  N.  W.  744  (1887). 

The  Stanislaus  &  San  Joaquin  Water  Company  owned  the  right  .to  take 
water  from  the  Stanislaus  river  for  irrigation  purposes,  and  also  a  dis- 
tributing canal.  It  made  a  contract  with  one  Threlfall,  the  owner  of  400 
acres  of  land,  whereby  it  agreed  to  furnish  him  with  water  for  the  said 
land  for  in-igation  purposes  at  the  annual  price  of  ijSl.SO  per  acre.  Ditches 
were  dug,  connecting  the  canal  with  the  land,  and  proper  gates  installed. 
The  Stanislaus  Water  Company  then  succeeded  to  the  title  of  the  original 
company,  and  Bachman  became  the  owner  of  the  land.  The  Stanislaus  Wa- 
ter Company  furnished  the  water,  but  demanded  a  higher  price,  and  brought 
action  therefor.  The  court  held  that  the  plaintiff  was  bound  by  the  agree- 
ment.    In  the  course  of  the  opinion  it  said  (per  Shaw,  J.): 

"We  have  assumed  that  the  right  conferred  on  Tlirelfall  by  the  agreemem 
with  the  canal  company  was  real  property.  This  is  controverted  by  plain- 
tiff, and  its  argument  is,  for  the  most  part,  founded  on  the  assumption  that 
it  was  either  personalty,  or  that  the  agreement  constituted  nothing  more  than 
a  personal  covenant  of  that  company  which  does  not  bind  the  plaintift,  as  its 
successor.     We  think  neitlier  of  these  propositions  is  correct.    That  water  in 


Ch.  2)  EASEMENTS  267 

its  natural  situation  upon  tlie  surface  of  the  earth,  whether  as  a  flowing 
stream,  as  a  lake  or  pond,  or  as  percolations  in  the  soil,  is  real  property 
will  not  beliisputegr  That  it  may  become  personalty  by  being  severed  from 
theland  and  conhned  in  porfahle  receptacles  is  also  evident.  There  is  a  re- 
mark in  the  opinion  of  Field,  J.,  in  People  ex  rel.  Heyneman  v.  Blake,  19 
Cal.  595  (1862),  which  has  apparently  given  rise  to  the  notion  that  when 
water  is  confined  in  artificial  channels  it  thereupon  becomes  personal  prop- 
erty. The  learned  jurist  there  says:  'Water  when  collected  in  reservoirs 
or  pipes  and  thus  separated  from  the  original  source  of  supply  is  personal 
property,,  and  is  as  much  the  subject  of  sale — an  article  of  commerce — as" 
orcunary  goods  and  merchandise.'  The  law  then  authorized  the  formation 
of  corporations  to  engage  in  'any  species  of  trade  or  commerce.'  The  cor- 
poration in  question  was  organized  to  engage  in  the  business  of  distributing 
and  selling  water  to  the  inhabitants  of  a  city  for  their  use.  The  question 
under  discussion  was  the  authority  to  organize  such  a  corporation  under 
that  law.  The  language  quoted  from  the  opinion  is  apt  for  the  disposition 
of  the  question  to  which  it  was  addressed,  but  it  is  by  no  means  tantamount 
to  a  decision  that  water  becomes  personalty  as  soon  as  it  is  diverted  from 
its  natural  channel  or  situation.  No  such  question  was  involved  in  that  case. 
The  earth  is  composed  of  land  and  water  and  the  water  is  not  different  in 
this  respect  from  other  material  substances  composing  a  part  of  the  earth. 
Trees  when  felled  and  cut  into  logs  and  lumber ;  coal,  iron,  gold,  and  silver 
when  taken  from  the  mine ;  rocks  when  quarried  from  their  bed ;  oil  when 
pumped  from  its  depths ;  clay  when  burned  into  bricks  or  converted  into 
cement — all  are  real  property  before  the  change,  but  upon  severance  forth- 
with become  personalty.  The  business  of  collecting  water  in  reservoirs,  con- 
ducting it  in  pipes  to  houses  of  a  city,  and  there  selling  and  delivering  it  to 
the  occupants  of  such  houses,  is  a  process  of  severing  the  water  from  its 
connection  with  the  earth  and  changing  it  into  personal  property.  The  per- 
son engaged  therein  is  as  much  engaged  in  trade  and  commerce  as  is  the  min- 
er, the  oil  producer,  the  brickmaker,  or  the  cement  manufacturer  who  sells 
his  pro'duct.  But  the  substances  in  which  these  persons  deal  do  not  become 
personalty  until  the  severance  is  complete.  The  right  to  the  water  in  the 
pipes  and  the  pipes  themselves,  usually  constitute  an  appurtenance  to  real 
property  in  such  cases,  and,  if  so,  the  water  usually  retains  its  character  as 
realty  until  severance  is  completed  by  its  delivery  from  the  pipes  to  the  con- 
sumer. The  right  in  water  which  has  been  diverted  into  ditches  or  other 
artificial  conduits,  for  the  purpose  of  conducting  it  to  land  for  irrigation, 
has  been  uniformly  classed  as  real  property  in  this  state.  'The  right  to 
water  must  be  treated  in  this  state  as  it  has  always  been  treated,  as  a 
right  running  with  the  land  and  as  a  corporeal  privilege  bestowed  upon  the 
occupier  or  appropriator  of  the  soil ;  and  as  such,  has  none  of  the  character- 
istics of  mere  personalty.'  Hill  v.  Newman,  5  Cal.  44(5,  63  Am.  Dec.  140 
(1S55).  The  right  to  have  water  flow  from  a  river  into  a  ditch  is  real  prop- 
erty ;  and  so  also  is  the  water  while  flowing  in  the  ditch.  Lower  Kings  Riv- 
er Water  Ditch  Co.  v.  Kings  River  &  F.  Canal  Co.,  60  Cal.  410  (1882).  A 
wrongful  diversion  of  water  flowing  in  a  ditch  is  an  injury  to  real  prop- 
erty. Last  Chance  Water  Ditch  Co.  v.  Emigrant  Ditch  Co.,  129  Cal.  278, 
61  Pac.  960  (1900).  The  right  to  take  water  from  a  river  and  conduct  It  to 
a  tract  of  land  is  realty.  South  Tule  Independent  Ditch  Co.  v.  King,  144 
Cal.  454,  77  Pac.  1032  (1904).  The  right  to  have  water  flow  through  a  pipe 
from  a  reservoir  to  and  upon  a  tract  of  land  is  an  appurtenance  to  the  land. 
Standart  v.  Round  Valley  Water  Co.,  77  Cal.  403,  19  Pac.  689  (1888).  An  un- 
divided interest  in  a  ditch  and  in  the  water  flowing  therein  is  real  property. 
Hayes  v.  Fine,  91  Cal.  398,  27  Pac.  772  (1891).  A  ditch  for  carrying  water 
is  real  estate.  Smith  v.  O'Hara,  43  Cal.  376  (1872) ;  Bradley  v.  Harkness, 
26  Cal.  77  (1864).  And,  where  one  person  has  water  flowing  in  a  ditch  and 
another  has  the  right  to  have  a  part  of  such  water  flow  from  the  ditch  to 
his  land  for  its  irrigation,  the  right  of  the  latter  is  a  servitude  upon  the 
ditch,  and  is  real  property.  Dorris  v.  Sullivan,  90  Cal.  286,  27  Pac.  216 
(1891).  So,  in  the  case  at  bar,  the  right  of  Threlfall  and  his  successor, 
Bachman,  under  the  agreement,  to  have  the  water  flow  from  the  plaintiffs 
canal  through  the  lateral  ditch,  to  the  land,  for  its  irrigation,  is  a  servitude 
upon  the  ditch  and  upon  the  canal,  is  an  appurtenance  to  the  land,  and  is 


208  RIGHTS  IN  THE  LAND  OF   ANOTHER  (Part  2 

SECTION  5.— AFFIRMATIVE  EASEMENTS  «« 


RIDER  V.  SMITH. 

(Court  of  King's  Bench,  1790.    3  Term  R.  766.) 

This  was  an  action  on  the  case  for  not  repairing  a  pdvatfi^Eoad 
leading  through  the  defendant's  ground.  The  declaration  stated  that 
the  plaintiff  on  &c,  and  long  before,  was  and  from  thence  hitherto  hath 
been  and  still  is  possessed  of  a  certain  messuage  &c,  and  by  reason  of 
his  possession  thereof  was  entitledjio  a  certain  way  from  the  said 
messuage  unto  into  through  and  over  a  certain  close  of  the  defendant  &c 
unto  and  into  the  king's  common  highway  &c  and  so  back  again  &c 
from  the  said  king's  common  highway  unto  into  &c  to  go  pass  and 
repass  &c ;  that  the  defendant  now  is  and  during  all  the  time  aforesaid 
hath  been  lawfully  possessed  of  and  in  the  said  close  called  &c,  and 
of  and  in  divers,  to  wit,  two  other  closes  of  land  in  the  parish  of  Man- 
chester aforesaid,  with  the  appurtenances,  contiguous  and  next  ad- 
joining to  the  said  close,  &c  to  wit,  &c.  And  that  the  defendant,  by 
reason  of  his  possession  of  the  said  close  called  &c,  and  the  said  two 
closes  of  land  with  the  appurtenances,  contiguous  and  next  adjoining 
thereto,  during  all  the  time  aforesaid  of  right  ought  to  havejnairitained 
and  repaired  and  still  ought  to  maintain  and  repair  at  his  own  proper 
costs  and  charges,  when  and  so  often  as  the  same  hath  been  necessary 
the  said  way  leading  &c,  yet  that  he  had  wrongfully  and  injuriously 
permitted  it  to  be  ruinous  and  out  of  repair  &c ;   per  quod  &c. 

To  this  declaration  there  was  a  general  demurrer,  and  joinder  in 
demurrer. 

Chambre,  in  support  of  the  demurrer,  objected  to  the  declaration, 
because  it  did  not  shew  by  what  right  or  obligation  the  defendant  was 
bound  to  repair  the  road ;  he  is  not  bound  of  common  right,  merely  as 
occupier.  Declaring  generally  on  possession  is  not  sufficient  against 
the  owner  of  the  soil,  tho'  it  is  against  a  wrong  doer.  Strode  v.  Byrt,  4 
Mod.  420.  Kenrick  v.  Taylor,  1  Wils.  326.  Waring  v.  Griffith,  1  Burr. 
443.  In  Keilw.  52,  pi.  4,  a  distinction  was  taken  between  the  mode 
of  charging  the  owner  of  the  inheritance,  and  the  occupier  only,  with 
the  repair  of  a  road ;  against  the  latter  it  is  necessary  to  allege  a  pre- 
scription, though  not  against  the  former.  So  in  R.  v.  Sir  T.  Fanshaw, 
1  Ventr.  331,  an  indictment  for  not  repairing  a  bridge  against  the  de- 
real  property."  Stanislaus  Water  Co.  v.  Bachman,  152  Cal.  716,  725,  9:j 
Pac.  858,  15  L.  R.  A.   (N.  S.)  359   (1908). 

60  For  the  most  part  obligations  which  impose  a  duty  of  afEi-mative  action 
upon  the  part  of  an  owner  of  land  do  not  come  within  the  category  of  what 
were  recognized  by  the  common-law  courts  as  easements ;  moreover,  they  are 
ordinarily  created  by  language  of  promise  rather  than  by  language  of  grant. 
See  post,  chapters  IV  and  V. 


Ch.  2)  EASEMENTS  2G9 

fendant  ratione  tenurse  was  held  good.  But  in  Sty.  400,  such  an  in- 
dictment by  reason  of  his  tenements  was  quashed.  This  latter  au- 
thority therefore  is  directly  in  point. 

Wood,  contra.  Formerly  a  distinction  was  taken  between  a  charge 
against  a  wrong-doer,  and  against  the  owner  of  the  land:  but  it  is 
now  sufficient  to  declare  generally  on  the  possession  of  the  defendant, 
and  to  charge  him  in  respect  of  that  possession.  The  precedents  for 
above  this  last  century  have  been  in  that  form,  and  no  objection  has 
hitherto  been  made  to  them.  And  in  Blockley  v.  Slater,  1  Lutw.  119, 
it  was  held  sufficient.  Sands  v.  Trefuses,  Cro.  Car.  575.  So  in  an  ac- 
tion for  not  grinding  at  the  plaintiff's  mill,  it  is  sufficient  to  say  that  the 
inhabitants  ought  of  right  to  grind  their  corn  there.  Chapman  v.  Flex- 
man,  2  Ventr.  291.  It  seems  admitted  that  if  the  defendant  had  been 
charged  by  reason  of  his  tenure  it  would  have  been  sufficient:  now 
this  amounts  to  the  same  thing ;  for  the  onus  prima  facie  goes  with  the 
possession. 

The  Court  were  clearly  of  opinion  that  the  declaration  sufficiently 
charged  the  defendant  by  reason  of  his  possession.    And 

BuLLER,  J.  said  the  distinction  was  between  cases  where  the  plain- 
tiff lays  a  charge  upon  the  right  of  the  defendant,  and  where  the  de- 
fendant himself  prescribes  in  right  of  his  own  estate.  In  the  former, 
case,  the  plaintiff  is  presumed  to  be  ignorant  of  the  defendant's  es- 
tate, and  cannot  therefore  plead  it,  but  in  the  latter  the  defendant, 
knowing  his  own  estate  in  right  of  which  he  claims  a  privilege,  must 
set  it  forth.  In  R.  v.  Sir  J.  Bucknall,  2  Ld.  Raym.  804,  Lord  Holt 
said  "where  a  man  is  obliged  to  make  fences  against  another,  it  is 
enough  to  say  omnes  occupatores  ought  tp  repair  &c,  because  that 
lays  a  charge  upon  the  right  of  another,  which  it  may  be  he  cannot 
particularly  know."  And  notwithstanding  two  out  of  three  of  the 
judges  were  of  a  different  opinion  in  Holback  v.  Warner,  Cro.  Jac. 
665 ;  yet  several  subsequent  cases  have  been  determined  on  the  above 
distinction.  In  1  Ventr.  264,  there  is  the  report  of  an  action  on  the 
case  against  the  defendant  for  not  repairing  a  fence,  where  the  allega- 
tion was  that  the  tenants  and  occupiers  of  such  a  parcel  of  land  ad- 
joining the  plaintiff's  have  time  out  of  mind  maintained  it  &c;  Holt 
moved  in  arrest  of  judgment  "that  the  prescription  is  laid  in  occupiers, 
and  not  shewn  their  estates;  and  that  hath  been  judged  naught  in  1 
Cro.  155,  and  2  Cro.  665."  But  the  Court  said  "it  is  true  there  have 
been  opinions  both  ways ;  but  'tis  good  thus  laid,  for  the  plaintiff  is 
a  stranger  and  presumed  ignorant  of  the  estate :  but  otherwise  it  is  if 
the  defendant  had  prescribed."  So  in  Tenant  v.  Goldwin,  Salk.  360, 
in  an  action  on  the  case  for  not  repairing  a  wall  "debuit  reparare"  was 
held  sufficient.  The  case  of  Winford  v.  Woollaston,  3  Lev.  266,  is  also 
to  the  same  effect. 

Judgment  for  the  plaintiff.^ ^ 

61  In  Middlefleld  v.  Church  Knitting  Mills  Co.,  160  Mass.  267,  35  N.  E.  780' 
(1894),  the  plaintiff  brought  action  to  recover  moneys  expended  in  repairing 


270  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 


BRONSON  V.  COFFIN  et  al. 

(Supreme  Judicial   Court   of  Massachusetts,   1871.     108   Mass,   175,   11   Am. 

Rep.  335). 

Contract  upon  the  covenant  against  incumbrances,  contained  in  a 
deed  from  the  defendants  to  the  plaintiff,  dated  May  24,  1866.  Writ 
dated  September  28,  1868.  Trial  in  the  superior  court,  before  Putnam, 
].,  who  made  the  following  report  thereof : 

"The  land  in  question  was  situated  In  New  Bedford,  and  came  to  the 
defendants  under  the  will  of  the  late  Timothy  G.  Coffin,  and  was  a 
portion  of  his  farm. 

"On  April  6,  1839,  the  said  Coffin  conveyed  a  strip  of  land  fifty- 
five  rods  in  length  and  four  and  three  tenths  rods  wide,  running  through 
the  land  in  question,  to  the  New  Bedford  &  Taunton  Railroad  Com- 
pany, by  a  deed  which  contained  the  following  clause :  *I,  the  said  T. 
G.  Coffin,  hereby  covenant  that  I  and  my  heirs  and  assigns  will  make 
and  maintain  a  sufficient  fence  through  the  whole  length  of  that  part 
of  the  railroad  which  runs  through  my  farm ;  this  covenant  of  main- 
taining the  fence  to  be  perpetual  and  obligatory  upon  me  and  all 
•persons  who  shall  become  owners  of  the  land  on  each  side  of  said 
railroad.' 

"The  defendants  contended  that  this  clause  did  not  constitute  an 

incumbrance  on  the  land,  but  created  merely  a  personal  obligation.    But 

the  judge,  for  the  purposes  of  the  trial,  ruled  that  it  did  constitute  an 

incumbrance  upon  the  whole  of  the  land  now  owned  by  the  plaintiff, 

/^  and  which  he  held  under  said  deed.    To  this  ruling  the  defendants  ex- 

'^  cepted.     *     *     * 

Gray,  J.®^     [After  quoting  the  language  of  the  deed  from  Coffin  to 

the  railroad:] 

'  The  principal  question  in  the  case  is,  whether  the  obligation  thus 

■p'  expressed,  to  maintain  a  division  fence  between  the  land  granted  and 

■  the  adjoining  lands  of  the  grantor,  created  a  charge  upon  those  lands, 

binding  upon  any  assignee  thereof,  either  by  way  of  covenant  running 

with  the  lands,  or  grant  of  an  interest  in  the  nature  of  an  e'asement 

a  bridge.  The  declaration  alleged  that  the  defendant  and  its  predecessors 
in  title  of  a  certain  piece  of  land  were,  as  owners  thereof,  under  a  duty  to 
the  plaintiff  town  to  keep  the  bridge  in  repair  and  had  failed  so  to  do.  In 
sustaining  the  action  of  the  lower  court  in  overnaling  a  demurrer  to  the  dec- 
laration, the  court  said,  per  Holmes,  J.  (160  Mass.  p.  271,  35  N.  E.  782):  "it 
is  true  that,  in  general,  active  duties  cannot  be  attached  to  land  and  that 
affirmative  covenants  only  bind  the  covenantor,  his  heirs,  executors,  and 
administrators.  But  there  are  some  exceptions,  and  most  conspicuous  among 
them  is  the  obligation  to  repair  fences  and  highways." 

See  Perley  v.  Chandler,  6  Mass.  454,  4  Am.  Dec.   159  (1810). 

In  Whittenton  Mfg.  Co.  v.  Staples,  164  Mass.  819,  41  N.  E.  441,  29  h.  K. 
A.  500  (ISO.j),  the  court  enforced  against  land  owned  by  the  defendant  a  pre- 
,  scriptive  obligation  to  pay  a  proportionate  part  of  the  annual  cost  of  lieeping 
up  a  dam  supplying  water  power  to  laud  so  owned. 

«2  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


iA^i^».<X_- 


Ch.  2)  EASEMENTS  271 

therein,  which  constituted  an  incumbrance,  within  the  meaning  of  the 
covenant  against  incumbrances  in  a  subsequent  deed  thereof  from  the 
grantor  or  those  claiming  title  under  him. 

"On  general  principles,"  said  Chief  Justice  Parsons,  "every  right 
to  or  interest  in  the  land  granted,  to  the  diminution  of  the  value  of  the 
land,  but  consistent  with  the  passing  of  the  fee  in  it  by  the  conveyance, 
must  be  deemed  in  law  an  incumbrance."  Prescott  v.  Trueman,  4 
Mass.  627,  629,  3  Am.  Dec.  246. 

Words  sounding  in  covenant  only  may  operate  by  way  of  grant  of  an 
easement,  wherever  it  is  necessary  to  give  them  that  effect  in  order  to 
carry  out  the  manifest  intention  of  the  parties.  Bro.  Ab.  Covenant,  2 ; 
Holmes  v.  Seller,  3  Lev.  305 ;  Rowbotham  y.  Wilson,  8  H.  L.  Cas. 
348 ;  Greene  v.  Creighton,  7  R.  I.  1 ;  Norfleet  v.  Cromwell,  64 
N.  C.  1.     *     *     * 

In  the  general  definitions  of  easements  in  the  text  books,  it  is  in- 
deed sometimes  said  that  they  consist  either  in  suffering  something  to 
be  done,  or  in  abgtaining  from  doing  something,  upon  the  servient  tene- 
ment. 3  Kent,  Com.  (6th  Ed.)  419 ;  Washburn  on  Easements  (2d  Ed.) 
4,  5T  Gale  on  Easements  (4th  Ed.)  5.  But  the  obligation  to  maintain  a 
fence  by  prescription  or  agreement  is  classed  by  the  same  writers 
with  easements,  though  Mr.  Gale  calls  it  a  "spurious  easement,"  and 
one  of  his  editors  "a  right  in  the  nature  of  an  easement."  3  Kent, 
Com.  438;  Washburn  on  Easements,  524;  Gale  on  Easements,  117, 
460,  487,  488,  524,  note.  See  also  Hunt  on  Boundaries  and  Fences  (2d 
Ed.)  49,  51,  99. 

In  England,  it  has  been  well  settled  from  very  early  times,  and  never 
denied,  that  an_obligation  of  the  owner  of  land  to  fence  against  land 
adjoining  may  be  established  by  prescription,  and  if  so  established  is 
aj:harge  upon  his  land.  Plad  this  not  been  so,  the  point,  formerly  much 
mooted,  whether  such  a  charge  was  extinguished  by  unity  of  posses- 
sion and  title  of  the  two  closes,  could  not  have  arisen.  Fitz.  N.  B. 
128,  note;  Anon.,  Dyer,  295  b;  Sury  v.  Pigot,  Pop.  166,  170,  172;  s. 
c.  Noy,  84;  Latch,  153,  154;  Polus  v.  Henstock,  1  Ventr.  97;  s.  c.  2 
Keb.  686,  707;  T.  Raym.  192;  Star  v.  Rookesby,  1  Salk.  335;  Vin. 
Ab.  Fences,  pi.  164,  166;  Boyle  v.  Tamlyn,  9  D.  &  R.  430;  s.  c.  6 
B.  &  C.  329;  Barber  v.  Whiteley,  34  L.  J.  N.  S.  (Q.  B.)  212.  In 
Boyle  V.  Tamlyn,  Mr.  Justice  Bayley  said:  "Such  a  right  to  have 
fences  repaired  by  the  owner  of  adjoining  land  is  in  the  nature  of  a 
grant  of  a  distinct  easement,  affecting  the  land  of  the  grantor."  9 
D.  &  R.  437,  and  6  B.  &  C.  338,  339.  And  Justices  Littledale  and 
Holroyd  appear  to  have  concurred  in  his  view.    9  D.  &  R.  439,  440. 

In  Massachusetts,  the  doctrine  has  always  been  recognized,  that 
the  owner  or  occupier  of  land  may  be  bound  by  prescription  to  a 
more^.  extensive  obligation  to  keep  up  and  repair  the  division  fences 
than_would  be  imposed  upon  him  by  the  common  law  or  by  the  statutes 
of  the  commonwealth.  Rust  v.  Low,  6  Mass.  90,  94,  97 ;  2  Dane,  Ab. 
659,  660;    Minor  v.  Deland,   18  Pick.  266,  267;    Thayer  v.  Arnold, 


272  RIGHTS   IX   THE   LAND   OF   ANOTHER  (Part  2 

4  Mete.  589,  590.  In  Binney  v.  Hull,  5  Pick.  503,  506,  it  was  ad- 
judged that  the  owner  of  one  of  two  adjoining  lots  of  land  might  be 
bound  by  prescription  to  maintain  the  fence  between  them ;  and  Chief 
Justice  Parker  spoke  of  the  right  to  have  him  do  so,  as  an  easement 
in  his  land.     *     *     * 

In  the  deed  now  before  us,  the_covenant  to  maintain  a  fence  upon 
the  line  of  division  between  the  land  granted  to  the  railroad  corporation 
and  the  lands  retained  on  either  side  thereof  is  made  by  the  grantor, 
and  is  in  terms  declared  to  bind  his  heirs  and  assigns  and  to  be  in- 
tended to  be  perpetual  and  obligatory  upon  him  and  all  persons  who 
shall  become  owners  of  the  lands  on  each  side  of  the  railroad,  and 
this  obligation  is  imposed  upon  all  of  them  only  as  owners  and  by 
virtue  of  their  ownership.  It  would  be  difficult  to  express  more_clear- . 
ly  an  intention  that  the  duty  of  maintaining  the  fence  should  be_"a 
charge  upon  these  lands  into  whose  hands  soever  they  should  come. 
The  manifest  purpose  was  to  regulate  the  mode  of  occupying  the  lands 
retained,  for  the  purpose  of  securing  to  the  grantees  the  full  beneficial 
use  of  the  land  granted,  by  establishing  a  permanent  barrier  to  prevent 
all  persons  and  cattle  from  straying  upon  it.  The  necessary  conclu- 
sion is,  upon  principle  and  authority,  that  the  terms  of  Coffin's  deed 
conveyed  to  his  grantees  an  interest  in  the  nature  of  an  easement  in 
his  adjoining  lands,  and  thus  created  a  sufficient  privity  of  estafe  l)e- 
tween  them  and  his  assigns,  to  support  the  covenant  to  maintain  the 
fence  as  a  covenant  running  with  the  lands  adjoining;  and  that  such 
easement  and  covenant  constituted  an  incumbrance,  which  was  a  breach 
of  the  covenant  against  incumbrances  in  the  subsequent  deed  to  the 
plaintiff,  upon  which  this  action  is  brought.  It  was  therefore  rightly 
ruled  at  the  trial,  that  the  clause  in  Coffin's  deed  did  not  create  a  mere- 
ly personal  obligation,  but  constituted  an  incumbrance  upon  his  ad- 
joining lands. 

[A  new  trial  was  ordered  for  misdirections  upon  another  point.]  °' 

63Acc.:  Hazlett  v.  Sinclair,  76  Ind.  488,  40  Am.  Rep.  254  (18S1).  Com- 
pare Louisville  &  N.  R.  Co.  v.  Webster,  106  Tenn.  586,  61  S.  W.  1018  (1901). 

Upon  a  second  trial  of  Bronson  v.  Coffin  the  defendant  requested  an  in- 
struction in  substance  that  if  the  plaintiff  should  divide  the  land  in  ques- 
tion into  lots  leaving  one  narrow  lot  contiguous  to  the  railroad  and  should 
sell  the  other  lots,  the  purchasers  of  the  lots  not  contiguous  to  the  railroad 
would  take  free  from  the  obligation  to  fence.  Held,  the  instruction  should 
have  been  given.     Bronson  v.  Coffin,  118  Mass.  156  (1875). 


Ch.  2)  EASEMENTS  273 

CASTNER  V.  RIEGEL  et  al. 
(Supreme  Court  of  New  Jersey,  1892.     54  N.  J.  Law,  498,  24  Atl.  484.) 

Certiorari  at  the  prosecution  of  Emmeline  Castner  against  John  F. 
Riegel  and  others  toj;;eview  an  order  by  two  of  the  township  committee , 
of  Washington  township,  determining  and  directing  that  a  part  of  cer- 
tain Hrie  fences  should  be  made  and  maintained  by  prosecutor  and  an- 
other portion  by  defendant  Riegel.    Order  set  aside. 

Argued  at  November  term,  1891,  before  ScuddEr  and  MaCxIE),  JJ. 

MagiE,  J.  Prosecutrix  attacks  the  order  brought  before  us  by  this 
writ,  upon  the  ground  that  the  members  of  the  township  committee 
were  without  jurisdiction  to  make  it.  Her  contention  is  that  the  de- 
fendant Riegel  is  bound  by  law  to  make  and  perpetually  maintain  a 
fence,  along  the  whole  of  the  line  in  question  dividing  his  lands  from 
hers,  and  that  consequently  the  provisions  of  the  fence  act  relative  to 
the  determination  of  the  part  of  a  division  fence  to  be  made  and  main- 
tained by  each  of  two  owners  bound  to  make  and  maintain  it  equally 
cannot  apply.  The  fence  act  imposes  on  the  owners  of  adjoining  lands 
the  duty  of  making  and  maintaining  a  just  proportion  of  the  partition 
fence,  except  such  persons  as  shall  choose  to  let  their  adjoining  lands 
lie  vacant  and  open.  The  act  provides  that  under  certain  circumstanc- 
es two  of  the  township  committee  may  determine  what  part  of  the  par- 
tition fence  shall  be  maintained  by  each  owner.  But  if  one  of  the  own- 
ers is  under  obligation  to  make  and  maintain  the  whole  fence,  it  is  ob- 
vious that  the  statute  is  inapplicable,  and  there  will  be  no  power  to  di- 
vide the  fence.  Such  was  the  interpretation  given  to  a  similar  law  in 
New  York.  Adams  v.  Van  Alstyne,  25  N.  Y.  232.  It  becomes  neces- 
sary, therefore,  to  inquire  whether  the  obligation  to  make  and  maintain 
the  whole  of  the  partition  fence  in  question  rests  upon  the  defendant 
Riegel. 

The  contention  of  prosecutrix  is  that  he,  and  those  under  whom  he 
claims,  owners  of  the  lands  adjoining  hers,  and  separated  by  the  fence^ 
have,  for  the  period  of  about  38  years,  continually  mended  and  main- 
tained said  fence,  and  that  thereby  alright  in  the  nature  of  an  easement 
has  been  acquired  in  favor  of  her  lands,  and  a  duty  has  been  imposed 
upon  the  lands  now  owned  by  him  and  its  owners,  to  continually  amend 
and  maintain  the  fence.  That  an  obligation  to  maintain  partition  fenc- 
es might  arise  by  prescription,  which  could  be  enforced  by  the  writ 
curia  claudenda  at  common  law,  does  not  admit  of  doubf.  This  right 
was  said  by  Gale  &  Whatley  to  be  a  spurious  kind  of  easement.  Gale 
&  W.  Easem.  201,  202.  The  easement  seems  to  be  founded  upon  the 
duty  which  at  common  law  required  the  owner  of  a  close,  at  his  peril, 
to  keep  his  cattle  thereon,  and  to  prevent  them  from  trespassing  on  an 
adjoining  close;  and  when  the  owner  of  the  latter  erected  a  fence  for 
his  protection,  and  maintained  it  for  the  prescriptive  period,  he  was 

BiG.RlGHTS — IS 


274  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

deemed  to  have  discharged  his  neighbor  from  his  original  duty,  and 
to  have  become  bound  to  protect  his  own  close  by  some  grant  o^ar- 
gument  the  evidence  of  vi^hich  was  lost  by  lapse  of  time.  But  in  what- 
ever way  the  right  arose,  there  can  be  no  question  that  it  did  arise  by 
prescription  at  common  law.  Com.  Dig.  Droit,  M  1  and  M  2 ;  Vin.  Abr. 
"Fences,"  E;  Washb.  Easem.  634;  Ivins  v.  Acherson,  38  N.  J.  Law, 
220;   Lawrence  v.  Jenkins,  L.  R.  8  Q.  B.  274. 

Did  this  feature  of  the  common  law  become  a  part  of  the  law  of  New 
Jersey,  and  has  it  been  modified  or  repealed  by  our  legislation  con- 
cerning fences?  Those  questions  do  not  seem  to  have  been  hitherto 
mooted  in  our  courts.  In  other  states  with  similar  laws  such  ques- 
tions have  been  dealt  with.  The  earliest  case  is  Rust  v.  Low,  6  Mass. 
90,  and  the  opinion  is  by  Chief  Justice  Parsons.  It  was  held  that  since, 
at  the  original  settlement  of  the  country,  no  prescription  to  fence  could 
exist,  the  common  law  authorizing  the  writ  of  curia  claudenda,  be- 
ing inapplicable  to  the  state  of  the  colony,  was  never  introduced  into 
Massachusetts.  But  it  was  also  held  that  since,  under  their  statute, 
(which  closely  resembles  our  fence  act,)  adjoining  owners  were  bound 
to  make  and  maintain  an  equal  part  of  the  division  fence,  and  could 
agree  upon  the  parts  to  be  made  and  maintained  by  each  respectively, 
or,  in  default  of  an  agreement,  could  procure  an  assignment  of  the 
part  each  should  make  and  maintain,  .and  since  the  country  had  then 
been  settled  long  enough  to  allow  the  time  necessary  to  prove  a  pre- 
scription, and  ancient  assignments  or  agreements  might  have  existed 
and  been  lost,  a  right  by  prescription  (which  at  common  law  was  pre- 
sumed to  stand  on  a  lost  grant)  might  be  set  up  and  proved  by  ancient 
usage.  The  doctrine  of  that  case  was  applied  in  Binney  v.  Proprie- 
tors, 5  Pick.  (Mass.)  503,  and  approved  in  Thayer  v.  Arnold,  4  Mete. 
(Mass.)  589,  and  in  Bronson  v.  Coffin,  108  Mass.  175,  11  Am.  Rep.  335. 
Evidence  that  a  fence  was  originally  erected  by  one  owner  of  the  land 
it  adjoined,  and  maintained  for  30  years  by  his  grantees,  was  held  to 
require  a  presumption  of  an  original  grant  or  agreement  establishing  a 
division  of  the  fence,  and  imposipg  an  obligation  to  maintain.  Knox 
V.  Tucker,  48  Me.  373,  77  Am.  Dec.  233.  A  charge  that,  if  the  own- 
ers of  land,  or  those  from  whom  they  derived  title,  had,  for  a  sufficient 
period,  severally  maintained  well-defined  portions  of  a_.diyision  fence, 
each  repairing  a  part,  and  recognizing  his  obligation  to  do  so,  a  divi- 
sion by  prescription  was  established,  was  held  correct.  Harlow  v. 
Stinson,  60  Me.  347. 

A  valid  prescription,  by  which  an  owner  of  land  would  become 
bound  to  maintain  perpetually  the  whole  of  a  division  fence  between 
him  and  an  adjoining  owner,  was  recognized  by  Judge  Denio  in  the' 
New  York  court  of  appeals,  but  it  was  held  that  no  obligation  to  main- 
tain would  be  established  by  proof  that  one  owner  had  maintained  for 
any  length  of  time  an  equal  or  just  proportion  of  a  division  fence. 
Adams  v.  Van  Alstyne,  ubi  supra.  In  the  courts  of  New  Hampshire 
and  Connecticut  the  power  to  acquire  such  a  right  in  the  maintenance 


Ch.  2)  EASEMENTS  275 

of  a  division  fence  by  user  or  prescription  is  denied,  but  in  the  latter 
state  the  common-law  obligation  of  owners  to  keep  upon  their  own 
land  their  cattle  no  longer  exists.  Glidden  v.  Towle,  31  N.  H.  147; 
Wright  V.  Wright,  21  Conn.  330.  The  true  doctrine  upon  this  sub- 
jectp  in  my  jud:gment,  lies  between  the  extremes  indicated  by  the  de- 
cisions^ referred  to.  A  right  in  favor  of  the  owner  of  one  of  two  ad- 
joining tracts  of  land  to  have  the  division  fence  perpetually  maintain- 
ed for  the  whole  or  a  specified  part  of  the  boundary  line  by  the  owner 
of  the  other  tract  may  undoubtedly  be  created  by  grant  or  agreement. 
Such  a  right  is  in  the  nature  of  an  easement,  and  is  a  burden  imposed 
on  a  servient  tenement  in  favor  of  a  dominant  tenement.  Easements 
may  be  established  by  proof  of  a  continuous,  uninterrupted,  and  ad- 
verse user  in  this  state  for  that  period  of  time  which  by  analogy  now 
suffices  for  what  n^ay  yet  be  called  "prescription,"  viz.,  20  years.  Rail- 
road Co.  V.  McFarlan,  43  N.  J.  Law,  605.  Such  user  affords,  in  gen- 
eral,  a  conclusive  presumption  of  a  lost  grant.  The  difficulty  in  apply- 
ing to  the  case  of  a  boundary  fence  the  doctrine  of  easements  acquired 
by  user  is  obvious.  The  common-law  rule  respecting  the  protection 
of  lands  by  fences  has  been  here  modified  by  the  statute,  which  impos- 
es on  owners  of  lands  lying  adjacent  an  obligation  and  duty  to  maintain 
each  a  just  proportion  of  a  division  fence.  What  part  each  should 
make  and  maintain  may  be  determined  by  their  mutual  agreement,  or 
by  the  determination  of  two  of  the  township  committee,  made  in  the 
manner  prescribed.  When  for  a  period  of  over  20  years  the  owner  of 
one  of  two  adjoining  tracts  has  continuously,  without  interruption, 
and  as  of  duty,  repaired  and  maintained  the  whole  of  the  division  fence, 
in  my  judgment  a  presumption  would  arise  that  he  or  those  under 
whom  he  derived  title  were,  as  owners  of  a  servient  tenement,  bound 
to  perpetually  make  and  maintain  the  fence. ^*  The  existence  of  a 
former  and  lost  agreement  to  do  so  may  be  inferred,  and  no  other  in- 
ference would  be  consistent  with  the  circumstances. 

But  the  difficulty  arises  when  the  owner  of  one  tract  has  maintained 
in  the  manner  mentioned  only  a  part  of  the  division  fence.  An  obliga- 
tion to  perpetually  maintain  a  specific  portion  of  such  a  fence  may 
be  acquired  and  imposed  by  grant  or  agreement.  But  will  the  contin- 
uous maintenance  for  20  years  of  only  a  part  of  the  division  fence — no 
grant  or  agreement  being  actually  in  existence — justify  a  presumption 
of  an  obligation  to  perpetually  maintain  that  portion?  If,  by  the  stat- 
ute, the  determination  of  two  of  the  township  committee  fixing  the 
portion  of  the  division  fence  to  be  maintained  by  each  owner  is  de- 
signed to  fix  the  obligations  of  the  owners  forever,  without  reference 
to  subsequent  changes  in  ownership  and  the  introduction  of  new  divi- 

64ACC.:  Titus  v.  Pennsylvania  R.  Co.,'  87  N.  J.  Law,  157,  92  Atl.  944,  Ann. 
Gas.  1917B,  1251  (1914). 

As  to  how  far  the  servient  is  responsible  for  breaches  in  the  fences  occur- 
ring without  negligence  on  his  part,  see  Lawrence  v.  Jenkins,  L.  R.  8  Q.  B. 
274  (1873).     Compare  Bell  v.  Twentyman,  1  A.  &  E.  N.  S.  7(36   (1841). 


276  RIGHTS  IN  THE  LAND  OF  ANOTHER  (Part  2 

sion  lines,  then  a  20-years  maintenance  of  a  part  of  the  fence  would 
justify  the  presumption  of  an  obligation  to  maintain  it,  arising  by  an 
agreement  or  grant  in  respect  to  that  part.  But  such  a  construction  of 
the  fence  act  would,  in  my  judgment,  be  indefensible.  The  subject  of 
the  act  is  the  boundary  fence  of  adjoining  lands  of  different  owners. 
It  obliges  them  to  maintain  such  a  fence  in  just  proportion,  to  be  fixed 
by  agreement  or  determination  of  the  township  committee.  When  one 
of  two  such  adjoining  tracts  is  subdivided  by  grant,  so  that  the  bound- 
ary of  the  granted  tract  adjoins  that  of  the  tract  undivided,  there  arises 
a  new  subject  for  the  operation  of  the  act,  viz.,  the  boundary  fence  of 
adjoining  lands  of  different  owners.  And  since  the  act  requires  the 
fixing  of  a  just  proportion  of  fence  to  be  maintained,  it  is  plain  that 
the  original  agreement  or  determination  must  cease  to  operate,  to  be 
replaced  by  a  new  agreement  or  determination  in  respect  to  the  bound- 
ary which  remains  between  the  original  owners.  Any  other  construc- 
tion would  be  opposed  to  the  spirit  of  the  act,  and  would  produce  great 
confusion  and  injustice.  The  construction  does  no  violence  to  the 
language  of  the  act.  The  result  is  that  the  continued  maintenance  for 
any  length  of  time  of  a  part  only  of  a  division  fence  must  be  deemed 
to  be  referable — in  the  absence  of  proof  of  an  express  agreement — to 
an  agreement  or  an  assignment  made  under  the  statute,  and  no  pre- 
sumption will  arise  of  a  perpetual  obligation  to  maintain  that  portion 
of  the  fence.  This  was  the  conclusion  arrived  at  in  Adams  v.  Van 
Alstyne,  ubi  supra.  The  construction  given  to  the  fence  act  harmoniz- 
es with  the  view  that  the  agreement  of  adjoining  owners  respecting  di- 
vision of  the  fence  between  them  may  be  by  parol.  Ivins  v.  Acker- 
son,  38  N.  J.  Law,  222. 

The  contention  of  prosecutrix  that  defendant  Riegel  is  shown  by  the 
evidence  to  be  under  a  perpetual  obligation  to  maintain  the  fence,  which 
was  divided  by  the  determination  of  the  township  committee,  cannot 
prevail.  The  evidence  shows  that  the  lands  of  prosecutrix  and  Riegel 
adjoin  for  a  distance  of  about  183  perches.  The  fence  which  the  com- 
mittee divided  extends  for  less  than  118  perches.  It  is  therefore  only 
a  part  of  the  fence  which  the  statute  requires  both  adjoining  owners 
to  maintain.  The  proof  that  Riegel  and  those  under  whom  he  claims 
have  continuously,  and  as  if  under  duty  to  do  so,  maintained  for  over 
30  years  this  part  of  the  fence,  does  not  establish  a  right  in  the  nature 
of  an  easement  for  the  continued  maintenance  thereof.  The  proofs 
raise  only  a  presumption  that  previously,  by  agreement  or  determina- 
tion, the  whole  boundary  line  had  been  divided,  and  the  part  which 
is  now  in  question  had  been  taken  by  or  assigned  to  the  owner  of  the 
land  now  Riegel's.  Nor  is  this  presumption  aft'ected  by  the  fact  that 
the  part  so  maintained  considerably  exceeds  the  remainder  of  the 
boundary  fence.  The  act  requires  each  owner  to  make  and  amend  a 
just  proportion  of  the  fence,  and  in  declaring  that  it  shall  be  equally 
divided  requires  regard  to  be  had  to  the  quantity  of  fence  necessary, 
and  other  conveniences  of  fencing.     But  the  conclusion  arrived  at  on 


Ch.  2)  EASEMENTS  277 

the  proofs  is  fatal  to  the  jurisdiction  of  the  township  committee,  for 
they  establish  either  an  agreement  on  the  part  of  the  owners  of  the 
Riegel  tract  to  make  and  maintain  the  fence  in  question  as  the  just 
proportion  of  the  whole  boundary  fence,  or  a  previous  determination 
to  that  effect  under  the  statutes.  In  either  case,  the  committeemen 
had  no  right  to  act. 

In  my  judgment,  jurisdiction  to  make  any  determination  in  respect 
to  this  fence  is  also  shown  not  to  exist  by  the  mere  proof  that  it  com- 
prises only  a  part  of  the  whole  division  fence  between  the  lands  of  the 
parties.  The  act  plainly  contemplates  a  division  of  the  whole  fence, 
and  neither  party  can  invoke  its  aid  to  divide  it  by  piecemeal. 


SECTION  6.— EXTINGUISHMENT  OF  EASEMENTS 


MOORE  V.  RAWSON. 

(Court  of  King's  Bench,  1824.     3  Barn.  &  C.  332.) 

Case  for  obstructing  lights.  Plea,  not  guilty.  At  the  trial  before 
Hullock,  B.,  at  the  last  Spring  assizes,  for  the  county  of  Derby,  it  ap- 
peared, that  the  plaintiff  was  seised  in  fee  of  a  messuage  and  building,, 
with  a  yard,  garden,  and  appurtenances,  situate  at  Ripley,  in  tliat  coun- 
ty, in  the  occupation  of  a  tenant  from  year  to  year.  The  defendant 
was  the  owner  of  other  messuages  and  premises  next  adjoining  the 
plaintiff's,  on  the  northern  side  thereof.  The  plaintiff's  messuage  was 
an  ancient  house,  and  adjoining  to  it  there  had  been  a  building  for- 
merly used  as  a  weaver's  shop.  The  old  shop  had  ancient  windows, 
for  the  convenience  of  light  to  the  weavers  who  worked  looms  there. 
About  seventeen  years  ago  the  then  owner  and  occupier  of  the  premises 
took  down  tlie  old  shop,  and  erected  on  the  same  site  a  stable,  having  a 
blank  ^"all  next  adjoining  to  the  premises  of  the  present  defendant. 
This  building  had  latterly  been  used  as  a  wheelwright's  shop.  About 
three  years  ago,  and  while  the  plaintiff's  premises  continued  in  this 
state,  the  defendant  erected  a  building  next  to  the  blank  wall,  and  the 
plaintiffthen  opened  a  window  in  that  wall,  in  the  same  place  where 
tlTere~had  formerly  been  a  window  in  the  old  wall,  and  the  action  was 
brought  for  the  obstruction  of  this  new  window  by  the  building  so 
erected  by  the  defendant.  The  learned  Judge  directed  the  jury  to  find 
a  verdict  for  the  plaintiff,  but  reserved  liberty  to  the  defendant  to 
move  to  enter  a  nonsuit. 

Abbott,  C.  J.  I  am  of  opinion,  that  the  plaintiff  is  not  entitled  to 
maintain  this  action.  It  appears  that  many  years  ago  the  former  owner 
of  his  premises  had  the  enjoyment  of  light  and  air  by  means  of  certain 
windows  in  a  wall  of  his  house.    Upon  the  site  of  this  wall  he  built  a 


278  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

blank  wall  without  any  windows.  Things  continued  in  this  state  for 
seventeen  years.  The  defendant,  in  the  interim,  erected  a  building  op- 
posite the  plaintiff's  blank  wall,  and  then  the  plaintiff  opened  a  win- 
dow in  that  which  had  continued  for  so  long  a  period  a  blank  wall 
without  windows,  and  he  now  complains  that  that  window  is  darkened 
by  the  buildings  which  the  defendant  so  erected.  It  seems  to  me  that, 
if  a  person  entitled  to  ancient  light,  pulls  down  his  house  and  erects 
a  blank  wall  in  the  place  of  a  wall  in  which  there  had  been  windows, 
and  suffers  that  blank  wall  to  remain  for  a  considerable  period  of  time, 
it  lies  upon  him  at  least  to  show,  that  at  the  time  when  he  so  erected 
the  blank  wall,  and  thus  apparently  abandoned  the  windows  which  gave 
light  and  air  to  the  house,  that  was  not  a  perpetual,  but  a  temporary 
abandonment  of  the  enjoyment;  and  that  he  intended  to  resume  the 
enjoyment  of  those  advantages  within  a  reasonable  period  of  time.  1 
think  that  the  burthen  of  showing  that  lies  on  the  party  who  has  dis- 
continued the  use  of  the  light.  By  building  the  blank  wall,  he  riiay 
have  induced  another  person  to  become  the  purchaser  of  the  adjoining 
ground  for  building  purposes,  and  it  would  be  most  unjust  that  he 
should  afterwards  prevent  such  a  person  from  carrying  those  purposes 
into  effect.  For  these  reasons  I  am  of  opinion,  that  the  rule  for  a  non- 
suit must  be  made  absolute. 

IviTTLEDALE,  J.  According  to  the  present  rule  of  law,  a  man  may 
acquire  a  right  of  way,  or  a  right  of  common,  except,  indeed,  common 
appendant)  upon  the  land  of  another,  by  enjoyment.  After  twenty 
years'  adverse  enjoyment,  the  law  presumes  a  grant  madeT)efore  the 
user  commenced,  by  some  person  who  had  power  to  grant.  But  if  the 
party  who  has  acquired  the  right  by  grant  ceases  for  a  long  period  of 
time  to  make  use  of  the  privilege  so  granted  to  him,  it  may  then  be  pre- 
sumed that  he  has  released  the  right.  It  is  said,  however,  that  as  he 
can  only  acquire  the  right  by  twenty  years'  enjoyment,  it  ought  not  to 
be  lost  without  disuse  for  the  same  period;  and  that  as  enjoyment  for 
such  a  length  of  time  is  necessary  to  found  a  presumption  of  a  grant, 
there  must  be  a  similar  non  user,  to  raise  a  presumption  of  a  release. 
And  this  reasoning,  perhaps,  may  apply  to  a  right  of  common  or  of 
way.  But  there  is  a  material  difference  between  the  mode  of  acquiring 
such  rights  and  a  right  to  light  and  air.  The  latter  is  acquired  by  mere 
occupancy ;  the  former  can  only  be  acquired  by  user,  accompanied  with 
the  consent  of  the  owner  of  the  land ;  for  a  way  over  the  lands  of  an- 
other can  only  be  lawfully  used,  in  the  first  instance,  with  the  consent, 
express  or  implied,  of  the  owner.  A  party  using  the  way  without  such 
consent  would  be  a  wrong  doer;  but  when  such  a  user,  without  inter- 
ruption, has  continued  for  twenty  years,  the  consent  of  the  owner  is 
not  only  implied  during  that  period,  but  a  grant  of  the  easement  is  pre- 
sumed to  have  taken  place  before  the  user  commenced.  The  consent 
of  the  owner  of  the  land  was  necessary,  however,  to  make  the  user  of 
the  way  (from  which  the  presumption  of  the  grant  is  to  arise)  lawful 
in  the  first  instance.    But  it  is  otherwise  as  to  light  and  air.    Every  man 


Ch.  2)  EASEMENTS  279 

on  his  own  land  has  a  right  to  all  the  light  and  air  which  will  come  to 
him,  and  he  may  erect,  even  on  the  extremity  of  his  land,  buildings 
with  as  many  windows  as  he  pleases.  In  order  to  make  it  lawful  for 
him  to  appropriate  to  himself  the  use  of  the  light,  he  does  not  require 
any  consent  from  the  owner  of  the  adjoining  land.  He  therefore,  be- 
gins to  acquire  the  right  to  the  enjoyment  of  the  light  by  mere  occu- 
pancy. After  he  has  erected  his  building,  the  owner  of  the  adjoining- 
land  may,  afterwards,  within  twenty  years,  build  upon  his  own  land, 
and  so  obstruct  the  light  which  would  otherwise  pass  to  the  building  of 
his  neighbor.  But  if  the  light  be  suffered  to  pass  without  interruption 
during  that  period  to  the  building  so  erected,  the  law  implies,  from  the 
non-obstruction  of  the  light  for  that  length  of  time,  that  the  owner  of 
the  adjoining  land  has  consented  that  the  person  who  has  erected  the 
building  upon  his  land  shall  continue  to  enjoy  the  light  without  ob- 
struction, so  long  as  he  shall  continue  the  specific  mode  of  enjoyment 
which  he  had  been  used  to  have  .during  tliat  period.  It  does  not,  in- 
deed, imply  that  the  consent  is  given  by  way  of  grant ;  for  although  a 
right  of  common  (except  as  to  common  appendant)  or  a  right  of  way 
being  a  privilege  of  something  positive  to  be  done  or  used  in  the  soil  of 
another  man's  land,  m.ay  be  the  subject  of  legal  grant,  yet  light  and  air, 
not  being  to  be  used  in  the  soil  of  the  land  of  another,  are  not  the  sub- 
ject of  actual  grant ;  but  the  right  to  insist  upon  the  non-obstruction  and 
non-interruption  of  them,  more  properly  arises  by  a  covenant  which  the 
law  would  imply  not  to  interrupt  the  free  use  of  the  light  and  air.  The 
right,  therefore,  is  acquired  by  mere  occupancy,  and  ought  to  cease 
when  the  person  who  so  acquired 'it  discontinues  the  occupancy.  If, 
therefore,  as  in  this  case,  the  party  who  has  acquired  the  right  once 
ceases  to  make  use  of  the  light  and  air  which  he  had  appropriated  to 
his  own  use,  without  showing  any  intention  to  resume  the  enjoyment, 
he  must  be  taken  to  have  abandoned  the  right.  I  am  of  opinion,  that  as 
the  right  is  acquired  by  mere  user,  it  may  be  lost  by  non  user.  It 
would  be  most  inconvenient  to  hold,  that  the  property  in  light  and  air, 
which  is  acquired  by  occupancy,  can  only  be  lost  where  there  has  been 
an  abandonment  of  the  right  for  twenty  years.  I  think,  that  if  a  party 
does  any  act  to  show  that  he  abandons  his  right  to  the  benefit  of  that 
light  and  air  which  he  once  had,  he  may  lose  his  right  in  a  much  less  pe- 
riod  than  twenty  years.  If  a  man  pulls  down  a  house,  and  does  not  make 
any  use  of  the  land  for  two  or  three  years,  or  converts  it  into  tillage,  I 
think  he  may  be  taken  to  have  abandoned  all  intention  of  rebuilding 
the  house ;  and,  consequently,  that  his  right  to  the  light  has  ceased. 
But  if  he  builds  upon  the  same  site,  and  places  Avindows  in  the  same 
spot,  or  does  any  thing  to  show  that  he  did  not  mean  to  convert  the 
land  to  a  different  purpose,  then  his  right  would  not  cease.  In  this 
case,  I  think  that  the  owner  of  the  plaintiff's  premises  abandoned  his 
right  to  the  ancient  lights,  by  erecting  the  blank  wall  instead  of  that 
in  which  the  ancient  windows  were;    for  he  then  indicated  an  inten- 


280  EIGHTS   IX   THE   LAND   OF   ANOTHER  (Part  2 

tion  never  to  resume  that  enjoyment  of  the  light  which  he  once  had. 
Under  those  circumstances,  I  think  that  the  temporary  disuse  was  a 
complete  abandonment  of  the  right. 
Rule  absolute.^^ 


GRAIN  V.  FOX. 
(Supreme  Court  of  New  York,  1853.     16  Barb.  184.) 

GridlEy,  J.^^  This  was  an  action  to  recover  the  possession  of  a 
piece  of  land  that  had  been  laid  out  as  a  private  road,  through  the  farm 
of  the  plaintiff,  near  fifty  years  ago.  It  is  immaterial  whether  the  road 
was  legally  laid  out  or  not;  as  even  if  it  was  illegally  laid  out,  it 
would  form  the  basis  on  which  an  adverse  use  and  a  prescriptive  right 
to  the  easement  might  be  founded.  It  was  used  as  such  private  way 
more  than  twenty  years,  by  the  defendant's  grantor,  and  thus  became 
a  private  way.  The  plaintiff  relied  on  an  abandonment  and  obstruction 
of  the  easement,  for  a  number  of  years  past,  and  an  occupation  of  it 
utterly  inconsistent  with  and  destructive  of  its  use  as  a  way,  by  the  de- 
fendant; and  consequently  a  loss  of  the  right  to  enjoy. itjpr  the  gen- 
eral purposes  of  agriculture.  He  proved  that  there  was  formerly  a 
house  at  one  end  of  the  way,  with  no  other  egress  to  the  public  road 
than  through  this  way.  This  house  had  been  moved  off  some  twelve 
years  ago ;  and  a  barn,  belonging  to  the  owner  of  the  house,  had  been 
removed  six  or  seven  years.  For  the  last  six  or  seven  years,  the  land 
had  been  plowed, up  and  planted  with  potatoes ;  and  it  had  been  mowed, 
some  seasons,  and  used  for  general  agricultural  purposes,  like  the  rest 
of  the  farm.  It  had  been  fenced  up  at  each  end ;  thus  presenting  a 
permanent  obstruction  to  its  use  as  an  easement,  while  the  fence  con- 
es Bayley  and  Holroyd,  J  J.,  delivered  concurring  opinions. 
"But  we  appretiend  that,  as  an  express  release  of  the  easement  would 
destroy  it  at  any  moment,  so  the  cesser  of  use  coupled,  with  any  act  clearly 
indicative  of  an  intention  to  abandon  the  right  would  have  the  same  effect 
without  any  reference  to  time.  *  *  *  It  is  not  so  much  the  duration  of 
the  cesser  as  the  nature  of  the  act  done  by  the  grantee  of  the  easement, 
or  of  the  adverse  act  acquiesced  in  by  him,  and  the  intention  in  him  which 
either  the  one  or  the  other  indicates,  which  are  material  for  the  considera- 
tion of  the  jurv."  Lord  Denman,  C.  J.,  in  The  Queen  v.  Chorley,  12  Q.  B. 
519  (1S4S). 

lErle,  J.:]  "In  :Moore  v.  Rawson,  3  B.  &  C.  332  (E.  C.  L.  R.  vol.  10),  it 
seems  to  be  said  that  an  intention  to  abandon  it  [the  easement]  permanently 
destroys  it,  unless  a  contrary  intention  be  manifested  within  a  reasonable 
time,  which  is  not  defined.  I  should  feel  inclined  to  say  that  the  intention 
permanently  to  abandon  it  would  destroy  it  as  soon  as  it  was  communicated 
to  the  owners  of  the  servient  tenement,  without  the  lapse  of  any  time." 
Ix)rd  Campbell,  C.  J.:  "I  doubt  whether  the  communication  of  that  inten- 
tion destroys  the  right  until  the  communication  Is  acted  upon.  Then  It 
certainly  does."     Stdkoe  v.  Singers,  8  El.  &  Bl.  37  (1857). 

Malins,  V.  C:     "It  is  clear  that  if  [in  Moore  v.  Rawson]  there  had  been 
no  building  erected  before  the  expiration  of  the  seventeen  years,  the  plaintiff 
might  have  resumed  his  windows."     Cook  v.  Mayor  of  Bath,  IS  L.  T.  R.  IS. 
S.  123  (18G8). 
•  e  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Ch,  2)  EASEMENTS  281 

tinued.  The  present  defendant  had  resolved  to  sell,  and  offered  to  sell 
it  to  the  plaintiff;  thus  indicating  his  intention  to  abandon  its  use  as 
an  easement. 

After  the  testimony  was  closed,  the  defendant  moved  for  a  nonsuit, 
on  the  ground  that  there  was  no  period  of  nonuser  proved  to  have  ex- 
isted for  twenty  years ;  and  no  act  proved  showing  a  permanent  ob- 
struction and  an  intention  to  abandon  it  as  an  easement.  The  judge 
denied  the  motion ;  and  we  think  he  decided  that  question  right. 

After  the  trial  was  closed,  the  judge  before  whom  the  cause  was 
tried,  without  a  jury,  decided  all  the  questions  of  fact  and  law,  for  the 
'plaintiff',  and  ordered  judgment  for  the  possession.  And  tlie  question 
now  is,  whether  that  decision  was  correct.  He  found,  as  a  question  of 
fact,  "that  the  road  had  become  unnecessary  and  useless  for  the  pur- 
pose of  a  way;  that  the  defendant  had  appropriated  the  premises  for 
six  or  seven  years,  to  uses  entirely  inconsistent  with  their  use  as  a 
road,  and  with  the  intention  to  abandon  it  as  a  private  way."  Now  un- 
less the  decision  of  this  cause  in  favor  of  the  plaintiff  was  erroneous, 
on  these  grounds  thus  found,  we  must  affirm  the  judgment;  because 
there  was  some  evidence  to  support  the  finding,  and  that  cannot  be 
questioned,  any  more  than  the  verdict  of  a  jury.  The  counsel  for  the 
defendant,  therefore,  insists  that  where  there  has  not  been  a  nonuser 
for  twenty  years,  proof  must  be  given  of  some  permanent  obstruction, 
manifesting  an  absolute  intention  to  abandon  the  easement,  or  the 
right  is  not  extinguished..  And  it  must  be  confessed,  that  the  language 
of  some  of  the  elementary  writers  does,  indeed,  favor  such  a  principle. 
But  the  rule,  as  established  by  the  latter  authorities,  is  less  rigorous 
than  this.  Whenever  the  facts  are  such  as  to  show  clearly  an  intention 
to  abandon  the  easement,  as  such,  it  is  sufficient,  though  the  obstruction 
be  not  of  a  more  permanent  character  than  that  created  by  a  board  or 
a  rail  fence. 

So,  too,  it  is  enough  that  a  way  is  plowed  up  and  cultivated  for  agri- 
cultural purposes,  if  there  be  evidence  of  an  intention  to  make  the  oc- 
cupation perpetual,  for  a  purpose  inconsistent  with  an  enjoyment  of 
the  easement.  Chancellor  Kent  says,  "If  the  act  which  prevents  the 
servitude,  be  incompatible  with  the  nature  or  exercise  of  it,  and  be  by 
the  party  to  whom  the  servitude  is  due,  it  is  sufficient  to  extinguish  it ; 
and  when  it  is  extinguished  for  a  moment,  it  is  gone  forever."  (3  Kent, 
552.)  A  fence,  like  that  erected  by  the  defendant  at  each  end  of  this 
lane  or  way ;  the  use  of  the  land  for  agricultural  purposes,  for  a  se- 
ries of  years ;  the  removal  of  the  house,  for  the  accommodation  of 
whose  occupants  the  way  was  originally  granted,  with  the  declared  in- 
tention of  the  defendant,  to  sell  the  premises,  showing  a  fixed  and  ab- 
_solute_  determination  to  abandon  the  easement,  afford  evidence  of  as 
strong  a  character  as  would  be  furnished  by  the  erection  of  a  stone  wall 
across,  it.     *     *     * 

It  is,  however,  enough  to  say  that  the  facts  in  the  case  furnished  evi- 
dence which  tended  to  show  an  absolute  intention  permanently  to  aban- 


282  RIGHTS    IN   THE   LAND   OP  ANOTHER  (Part  2 

don  the  easement.  These  facts  were  passed  on  by  the  justice;  and,his 
finding  is  as  decisive,  on  a  question  of  fact,  as  the  verdict  of  a  jury. 
Had  we  less  doubt  of  the  correctness  of  the  decision  than  we  have,  it 
would  be  impossible  for  us  to  disturb  the  finding  of  the  justice,  with- 
out subverting  the  principles  on  which  a  decision  upon  questions  of 
fact  has  for  the  wisest  reasons  been  made  to  rest. 
Judgment  affirmed.®^ 


DILLMAN  et  al.  v.  HOFFMAN. 
(Supreme  Court  of  Wisconsin,  1875.    38  Wis.  559.) 

Appeal  from  the  County  Court  of  Milwaukee  County. 

In  1849,  James  Kneeland  was  the  owner  in  fee  simple  of  the  whole 
of  a  certain  lot  in  the  city  of  Milwaukee,  on  the  west  side  of  East  Wa- 
ter street,  having  a  front  of  sixty  feet  on  that  street,  and  running  back 
about  a  hundred  feet  to  the  Milwaukee  river.  In  that  year  he  erected 
a  building  on  said  lot,  covering  the  whole  width  thereof ;  the  lower 
story  containing  three  stores  fronting  on  East  Water  street,  of  about 
equal  size.  Between  the  north  and  middle  stores  was  constructed  a 
stairway  about  five  feet  wide,  leading  from  the  sidewalk  up  to  the  sec- 
ond story  of  the  building;  about  one-third  of  which  stairway  was 
north,  and  two-thirds  south,  of  the  division  line  belween  said  two 
stores.  In  the  secondi  story  "of  the  building  was  a  hall  about  forty  feet 
long  from  north  to  south,  and  twenty  feet  wide ;  the  north  end  of 
which  was  bounded  by  the  north  wall  of  the  building.  From  this  hall 
doors  opened  into  offices  on  the  east,  west  and  south  sides  thereof. 
The  landing  of  the  front  stairway  already  described  was  in  this  hall ; 
and  immediately  opposite  this  landing,  on  the  west  side  of  the  hall,  was 
a  rear  stairway,  leading  down  from  the  hall  by  one  flight  to  a  landing 
on  the  main  floor,  and  thence  by  another  flight  to  the  ground  in  the 

6 7 Ace:  Crossley  v.  Lightowler,  L.  R.  2  Ch.  App.  478  (1867),  prescriptive 
easement;  King  v.  Murphy,  140  Mass.  254.  4  N.  E.  566  (1885);  Korton  v. 
Duluth  Transfer  Co.,  129  Minn.  126,  151  N.  W.  907,  Ann.  Cas.  1916E,  760 
(1915);  Snell  v.  Levitt,  110  N.  Y.  595,  18  N.  E.  370,  1  L.  R.  A.  414  (1888), 
easements  created  by  deed.  Compare  Matliews  Slate  Co.  of  New  York  v. 
Advance  Industrial  Supply  Co.,  185  App.  Div.  74,  172  N.  Y,  Supp.  830  (1918). 

A.  bad  a  right  of  way  for  a  logging  railroad  over  B.'s  land.  He  took  up 
the  rails  in  order  to  log  in  another  district,  and  then  fell  into  financial  dif- 
ficulties, so  that  he  did  not  attempt  to  replace  the  rails  on  B.'s  land  for  ten 
years.  Held,  he  has  not  lost  his  easement.  McAdam  v.  Benson  Logging  & 
Lumbering  Co.,  57  Wash.  407,  107  Pac.  187  (1910). 

A.  had  a  right  of  way  across  B.'s  land.  He  bought  another  piece  of  land 
that  gave  him  for  part  of  the  way  a  more  convenient  access.  He  then  put 
a  board  fence  across  the  opening  to  the  first  passage.  Tliis  situation  con- 
tinued for  seven  years.  Held,  a  subsequent  purchaser  from  A.  may  use 
the  original  passage.  Hayford  v.  Bpokestield,  100  Mass.  491  (1868).  See, 
also.  Watts  v.  C.  I.  Johnson  &  Bowman  Real  Estate  Corp.,  105  Va.  519,  54  S. 
E.  306  (1906). 

"A  right  of  way,  once  established  by  prescription  (which  presupposes  a 
grant)  or  by  grant,  cannot  be  extinguished  by  a  parol  agreement."  Johnson, 
Chancellor,  in  I'ue  v.  Pue,  4  Md.  Ch.  386,  390  (1848). 


Ch.  2)  EASEMENTS  283 

rear  of  the  building,  and  being  on  both  sides  of  the  division  line  be- 
tween the  north  and  middle  stores.  A  small  office  over  the  front  stair- 
way connected  the  offices  on  the  east  side  of  the  hall,  which  would  oth- 
erwise have  been  separated  by  the  width  of  said  stairway ;  and  a  like 
office  over  the  rear  stairway  made  a  similar  connection  between  the 
other  offices  on  the  western  side  of  the  hall.  .The  hall  and  offices  occu- 
pied the  whole  of  the  second  story.  The  hall  was  open  to  the  roof, 
and  lighted  by  a  sky-light ;  but  over  the  offices  of  the  second  story  were 
similar  ones  in  the  third  story,  which  were  entered  from  a  gallery  run- 
ning around  the  east,  west  and  south  sides  of  the  hall ;  and  this  gal- 
lery was  reached  by  a  stairway  in  the  north  end  of  the  hall,  which  led 
up  several  steps  to  the  north  wall,  and  then  divided  and  led  up  east 
and  west  to  said  gallery.  Said  hall  was  built  by  Kneeland  for  the  com- 
mon benefit  and  accommodation  of  the  occupants  of  the  second  and 
third  stories  of  the  whole  building. 

On  the  I'st  of  August,  1855,  Kneeland  conveyed  the  south  forty  feet 
of  said  lot  to  one  Berliner,  and  the  deed  was  recorded  the  next  day. 
On  the  25th  of  the  same  month  he  conveyed  the  north  twenty  feet  of 
said  lot  with  the  appurtenances,  to  Charles  Geisberg.  Both  convey- 
ances were  by  warranty  deed,  with  full  covenants,  including  a  covenant 
that  the  premises  conveyed  were  free  of  all  incumbrances.  By  subse- 
quent conveyances,  Dillman,  one  of  the  plaintiffs  in  this  action,  suc- 
ceeded to  the  rights  of  Geisberg,  and  Hoffman,,  the  defendant,  to  those 
of  Berliner.    *    *    * 

In  December,  1865,  and  January,  1866,  or  some  weeks  later,  Geis- 
berg inclosed  the  north  part  of  the  hall  by  a  partition  wall,  reaching 
from  the  north  line  of  the  front  stairway  west,  and  parallel  to  the  north 
wall  of  the  building.  This  partition  extended  upward  from  the  floor 
to  the  ceiling  of  the  hall,  and  cut  off  access  to  the  third  story  by  means 
of  the  stairway  in  the  north  end  of  the  hall,  above  described ;  but,  dur- 
ing the  progress  of  the  work,  Geisberg  took  down  said  stairway  and 
placed  it  "at  the  south  end  of  the  hall,  over  the  middle  store,  connect- 
ing it  with  the  gallery,  so  as  to  give  access  to  the  upper  rooms"  [in 
the  third  story].  Geisberg  at  the  same  time  constructed  a  stairway 
over  his  own  store,  from  the  second  to  the  third  stories,  for  his  private 
ilse.  The  object  of  this  alteration  was  to  convert  the  whole  second  and 
third  stories  in  the  north  twenty  feet  (except  the  strip  between  said 
partition  and  the  division  line)  into  a  book  bindery. 

Within  a  year  before  the  commencement  of  this  action,  and  while 
Geisberg  owned  the  north  twenty  feet,  the  defendant  erected  a  parti- 
tion on  the  division  line,  in  the  rear  stairway,  and  in  the  hall,  nearly 
to  the  front  stairway ;  and  he  threatened  to  extend  this  partition  to  and 
through  said  front  stairway,  along  said  division  line,  to  the  front  side- 
walk. Dillman,  having  in  the  meantime  acquired  Geisberg's  title  to 
the  north  twenty  feet,  brought  this  action  to  maintain  his  right  to  the 
free  and  unimpeded  use  of  the  stairways,  and  the  passages  through  said 


284  EIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

hall  between  the  same,  and  to  enjoin  the  defendant  from  obstructing 
them.     *     *     * 

The  court  included  in  its  finding  of  facts  nearly  all  those  above 
stated.  It  also  made  the  following  additional  findings  as  to  matters  of 
fact;   and  to  these  exceptions  were  taken.     *     *     * 

4.  That  Geisberg  objected  to  the  construction  of  defendant's  par- 
tition on  the  division  line,  while  he  owned  the  north  twenty  feet,  and 
plaintiff  had  also  objected  since  his  purchase.  5.  That  plaintiff's  prem- 
ises would  be  necessarily  injured  and  their  value  impaired  by  the  ob- 
struction of  the  stairway  as  proposed  by  defendant;  that  said  stair- 
way, constituting  the  only  access  at  present  to  the  second  and  third 
stories  of  his  building,  would  be  reduced  to  a  width  of  twenty  inches, 
which  would  be  wholly  inadequate ;  and  that  Dillman  and  his  tenants 
would  thereby  practically  be  shut  out  from  a  free  and  sufficient  access 
to  the  upper  stories  of  his  building. 

[Judgment  was  given  in  favor  of  the  plaintiff,  substantially  to  the 
effect  that  he  was  entitled  to  the  use  of  all  stairways  and  halls  as  they 
were  before  the  defendant  made  the  erections  complained  of;  and 
enjoining  the  defendant  from  interfering  with  the  enjoyment  thereof 
by  the  plaintiffs.     Defendant  appealed.] 

Ryan,  C.  J.®^  *  *  *  Whether  upon  such  a  conveyance  of 
part  of  a  structure  dependent  for  access  above  on  common  stairs,  pas- 
sages and  halls,  the  doctrine  of  easements  in  ways  of  necessity  applies, 
as  held  in  Thompson  v.  Miner,  30  Iowa,  386,  Morrison  v.  King,  62  111. 
30,  and  perhaps  other  cases,  or  whether  in  such  a  case  the  conveyance 
of  part  should  not  be  held  to  determine  the  common  use  of  stairs,  pas- 
sages and  halls, — we  need  not,  in  our  view  of  this  case,  determine. 

For,  granting  the  easement,  each  stair,  passage  and  hall_was  not  a 
separate  easement,  but  together  constituted  one  entire,  mutual  ease- 
ment: parts  of  one  common  way.  And  the  common  stairs,  passages 
and  halls  being  in  part  upon  the  estate  of  each  party,  it  appears  very 
certain,  upon  principle  and  authority,  that  neither  party  could  insist 
upon  such  an  easement  in  the  estate  of  the  other,  and  at  the  same  time 
obstruct  the  easement  in  invitum  on  his  own  estate.  Either  party,  re- 
lying  for  himself  on  a  mutual  easement,  would  be  bound  to  concede 
it  to  the  other;  and  an  adverse,  permanent  exclusion  of  one  by  the 
other  upon  the  estate  of  the  latter,  would,  at  the  election  of  the  former, 
operate  as  an  extinguishment  of  the  mutual  easement  by  the  latter. 
Washburn  on  Eas.  ch.  5,  §  5,  and  the  cases  there  cited,  particularly 
Corning  v.  Gould,  16  Wend.  (N.  Y.)  531.  That  case  proceeds  upon 
obstruction  by  one  party  of  a  mutual  way,  and  appears  to  be  directly 
applicable  to  the  present  case.  See  also  Partridge  v.  Gilbert,  15  N.  Y. 
601,  69  Am.  Dec.  632;  Dyer  v.  Sanford,  9  Mete.  (Mass.)  395,  43  Am. 
Dec.  399. 

8 8  The  statement  of  facts  is  abridged  and  part  of  the  opinion  Is  omitted. 


Ch,  2)  EASEMENTS  285 

The  respondent's  grantor,  while  seized,  several  years  before  this  suit 
was  brought,  built  a  permanent  partition,  ever  since  maintained,  in- 
closing within  his  own  premises  a  great  part  of  the  common  halls  and 
passages  in  the  upper  stories  upon  his  own  estate,  and  removed  a 
stairway  between  the  second  and  third 'Stories,  part  of  the  common 
way,  from  his  own  premises  to  those  of  the  appellant.  This  worked 
a  substantial  change  in  the  economy  of  the  common  way,  and  went  far 
to  relieve  the  respondent's  premises  from  the  burthen  of  the  mutual 
easement  which  he  claims.  It  is  immaterial  that  this  change  left  a  com- 
mon way.  It  did  not  leave  the  same  common  way,  nor  one  apparently 
as  advantageous  to  the  appellant.  And  there  can  be  no  serious  ques- 
tion that  the  change  was  an  obstruction  of  the  common  way  establish- 
ed by  Kneeland,  within  the  rule  stated,  if  it  was  made  in  invitum.  The 
respondent,  however,  claims  that  it  was  made  by  consent  of  the  owners 
of  both  estates.  We  think  that  the  evidence  fails  to  establish  such 
consent.    *    *    * 

What  might  then  have  been  the  rights  or  remedies  of  the  appellant 
to  maintain  the  common  way,  we  need  not  now  inquire.  He  had  a 
right  to  insist  on  the  extinguishment  of  the  respondent,  as  he  did  and 
does.  The  mutual  easement,  if  there  were  one,  is  now  clearly  extin- 
guished by  the  permanent  obstruction  of  the  one  party  and  the  ratifica- 
tion of  it  by  the  other.  The  appellant's  partial  forbearance  to  enforce 
his  right  could  not  affect  the  right  itself,  until  the  new  way  should  ripen 
into  a  way^y  prescription.  And  the  respondent  cannot  have  equitable 
interposition  to  entoFce  against  the  appellant  a  mutual  way  in  both  of 
their  estates,  from  which  in  a  great  measure  jie  excludes  the  appel- 
lant  on  the  respondent's  own  estate. 

Other  questions  were  discussed  at  the  bar,  which,  in  this  view  of 
the  case,  it  is  unjnecessary  to  decide. 

By  the  Court. — The  judgment  of  the  court  below  is  reversed,  and 
the  cause  remanded  with  instructions  to  dismiss  the  complaint.^® 

8 9 Ace:  Steere  v.  TiCfany,  13  R.  I.  568  (1882).  See  Monaghan  v.  Memphis 
Fair  &  Exposition  Co.,  95  Tenu.  108,  31  S.  W.  497  (1895) ;  Tuttle  v.  Sowadski, 
41  Utali,  501,  126  Pac.  959  (1912). 

A.  laid  out  a  tract  of  land  in  city  lots  with  streets.  He  sold  one  lot  to 
X.  He  later  conveyed  the  fee  of  the  Streets  to  B.  Subsequently,  by  order 
of  the  city  council,  the  street  was  narrowed,  the  center  line  remaining  the 
same.  X.  fenced  in  the  land  between  the  old  and  new  line  of  the  streer, 
claiming  it  as  his  own.  Held,  the  strip  belongs  to  B.,  but  X.  still  has  an 
easenrent  over  it.  White's  Bank  of  Buffalo  v.  Nichols,  64  N.  Y.  65  (1876). 
See  Chew  v.  Cook,  39  N.  J.  Eq.  396  (1885). 


J^^^^ti^f^f^.l 


^f'   N 


286  BIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

PRATT  V.  SWEETSER. 

(Supreme  Judicial  Court  of  Maine,  1878,     68  Me.  344.) 

On  exceptions  from  the  superior  court. 

Trespass  quare  clausum. 

The  defendant  set  up  a  right  of  way  over  the  locus  in  quo,  which 
was  the  upland  mowing  field  of  the  plaintiff,  for  taking  off  marsh  hay 
from  his  marsh  adjoining  the  premises  on  which  the  trespass  was  alleg- 
ed to  have  been  committed,  and  introduced  evidence  tending  to  show 
that  such  right  of  way  had  been  acquired  by  him  and  those  under  whom 
he  claimed,  by  prescription. 

The  plaintiff  claimed  that  there  had  never  been  an  adverse  or  con- 
tinuous use  of  the  way  in  question  for  said  purpose,  for  twenty  con- 
secutive years,  and  introduced  evidence  tending  to  show  norKUser,  an 
abandonment  and  an  interruption  of  use  of  the  way,  and  that  the  line 
of  travel  over  which  the  hay  had  been  taken  off  was  not  the  same  each 
year. 

The  presiding  justice  instructed  the  jury  as  in  the  opinion  appears; 
and  the  defendant  alleged  exceptions. 

Virgin,  J.  The  defense  set  up  was  a  prescriptive  right  of  way 
across  the  locus.  To  this  the  plaintiff  replied  that,  if  the  defendant 
had  acquired  such  a  right,  he  subsequently  lost  it  by  abandonment. 
Upon  this  point  the  presiding  justice  instructed  the  jury  as  follows : 

"The  question  is  whether,  at  any  period  in  the  past,  the  owners  of 
the  marsh,  by  such  use  as  I  have  described,  had  obtained  a  right  of 
way  by  prescription.  Such  a  right  of  way,  if  once  obtained,  would 
continue  until  it  was  voluntarily  abandoned  with  an  intention  to  aban- 
don it,  or  until  it  had  ceased  to  be  used  for  a  period  of  twenty  years. 

"If  you  should  find  at  some  time  there  was  such  a  right  of  way,  then, 
upon  the  question  whether  it  continued  or  not  down  to  the  trespass, 
this  would  be  the  rule.  It  could  be  destroyed  in  two  ways;  and  these 
two  ways  are  all  it  is  necessary  for  me  to  consider.  First,  by  voluntary 
abandonment  of  it.  If  at  any  time  the  owners  of  the  marsh  had  an- 
other right  of  way,  and  gave  up  this  right  of  way  with  the  intention 
to  abandon  it, — if  that  is  proved,  their  right  would  cease  at  once.  Otl 
the  other  hand,  if  there  is  no  proof  of  that,  notwithstanding  they  did 
not  intend  to  abandon,  but  did  not  use  it,  tlien  that  non-use  rnust  con- 
tinue for  twenty  years  before  the  right  by  prescription  fails.  Having 
once  obtained  a  right  of  way,  they  may  abandon  it  at  any  time  they  see 
fit,  and  if  the  intention  is  proved,  that  is  the  end  of  it ;  or  if  they  cease 
to  use  it  for  twenty  years,  then  their  right  terminates  in  that  way." 

By  giving  this  unqualified  statement  as  to  the  effect  of  non-user, 
though  some  of  the  authorities  sustain  it,  we  think  the  learned  judge 
erred.  For,  even  if,  as  suggested  by  some  of  the  authorities,  there  is 
any  sound  distinction  between  easements  created  by  deed  and  those 
acquired  by  prescription, 'the  right  is  not  necessarily  lost  by  mere  non- 


Ch.  2)  EASEMENTS  287 

user  for  twenty  years.  The  better  doctrine  seems  to  be  that  non-user 
for  the  period  mentioned  is  evidence  of  an  intention  to  abandon ;  but 
It  IS  open  to  explanation,  and  it  may  be  controlled  by  evidence  that  the 
owner  had  no  s'uch  intention  while  omittins:  to  use  it.     Wash.  Ease- 


ments,  673 ;  3  Kent,  Com.  (12th  Ed.)  449,  and  notes;  Farrar  v.  Coop- 
er, 34  Me.  394. 

Exceptions  sustained. 

New  trial  granted.''"         , 


McCULLOUGH  et  al.  v.  BROAD  EXCHANGE  CO.  et  al. 

(Supreme  Court  of  New  York,  Appellate  Division,  First  Department,  1905. 
101  App.  DiT.  566,  92  N.  Y.  Supp.  533.) 

[The  defendant  was  the  owner  of  a  parcel  of  land  known  as  52  Ex- 
change Place,  and  of  several  other  adjacent  parcels.  The  first  parcel 
had  a  right  of  way  over  the  premises  known  as  51  and  53  Beaver  Street, 
ownecTi^y  the  plaintiff.  The  other  parcels  owned  by  the  defendant  had 
no  such  easement.  TKe  defendant  erected  upon  the  parcels  owned  by  it 
a  single  large  office  building,  twenty  stories  high,  with  a  single  heating 
and  power  plant,  and  accommodations  for  about  7,000  occupants.  It 
was  built  without  regard  to  the  original  lot  lines,  and  was  designed  as 
one  structure,  with  connecting  halls  and  stairways  throughout,  and  with 
interdependent  relations  between  its  various  parts.  All  the  coal  used 
in  the  power  plant  of  the  entire  building,  amounting  to  over  twenty 
tons  a  day,  was  taken  in  over  the  way  in  question ;  all  the  ashes  and 
waste  paper  were  so  removed,  and  the  way  was  used  by  the  tenants 
and  employees  from  all  parts  of  the  building. 

[The  plaintiff  brought  action  tojobtain  a  decree  forfeiting  and  ex- 
tinguishing the  easement  of  tlie  defendants.] 

Laughlin,  J.^^  *  *  *  The  trial  court  has  found  that  by  thus 
constructing  and  using  the  office  building  the  appellant  owner  has  "so 
materially  changed  the  condition  of  the  original  dominant  tenement  as 
to  increase  the  burden  of  the  servitude  upon  the  subservient  tenement 
of  the  plaintiffs,  and  to  subject  the  servient  tenement  to  the  services  of 
premises  other  than  the  premises  originally  dominant,  and  to  render  it 

TOAcc:     Ward  v.  Ward,  7  Exch.  838  (1852). 

Ace,  as  to  easements  created  by  deed:  Edgerton  v.  McMullan,  55  Kan.  90. 
39  Pae.  1021  (1895) ;  Barnes  v.  Lloyd,  112  Mass.  224  (1873) ;  New  York  Cent. 
&  H.  R.  R.  Co.  V.  City  of  Chelsea,  213  Mass.  40,  99  N.  E.  455  (1912) ;  Lathrop 
V.  Eisner,  93  Mich.  599,  53  N.  W.  791  (1892).  Ace.,  as  to  a  profit:  Seaman 
V.  Vaudrey,  16  Vez.  390  (1810) ;  Arnold  v.  Stevens,  24  Fick.  (Mass.)  106,  35 
Am.  Dec.  305    (1839). 

"It  is  certainly  true  that  a  right  of  enjoyment  may  be  lost  in  the  same 
way  it  has  been  gained;  and  when  acquired  by  an  adverse  possession  for 
twenty  years,  it  may,  I  should  suppose,  be  lost  by  non-user  for  tlie  same 
period."     Gibson,  C.  J.,  in  Nitzell  v.  Paschall,  3  Rawle  (Pa.)  76,  81  (1S31). 

Ti  Part  of  the  opinion  of  Laughlin,  J.,  and  the  opinion  of  O'Brien,  J.,  are 
omitted. 


288  RIGHTS  IN   THE  LAND   OF  ANOTHER  (Part  2 

impossible  to  separate  the  enjoyment  of  the  original  right  from  the  en- 
joyment of  the  excess  beyond  the  original  right,  and  to  make  impossi- 
ble the  legitimate  use  of  said  easement."  It  has  accordingly  been  dcj 
creed  that  the  appellant  owner  has  f orfeite5~aH Tfs~rights  to  tfie  enjoy- 
ment of  the  easement,  and  that  the  same  is  forever  forfeited  and  ex- 
tinguished, and  it  is  perpetually  enjoined  from  using  the  same. 

We  find  no  definite  evidence  indicating  that  it  would  be  Jeasibleor 
practicable  to  alter  the  building  in  such  manner  that  the  tenants  of  tJiat 
part  of  it  which  is  constructed  on  the  premises  formerly  known  as  52 
Exchange  Place  might  be  separated  from  the  others,  and,  in  the  exer- 
cise of  the  lawful -rights  of  the  appellant  owner,  be  permitted  to  use 
the  alley  and  areaway  for  ingress  and  egress  or  that  the  power  plant 
and  other  use  of  which  complaint  is  made  might  be  likewise  separated. 
However,  it  is  not  impossible  to  make  this  separation,  and,  if  the  owner 
wishes  to  do  so,  we  see  no  reason  why  it  should  not  be  permitted. 
Moreover,  the  office  building  may  be  destroyed  or  otherwise  demolish- 
ed or  removed  at  any  time,  and  in  that  event  it  would  seem  that  the 
owner  should  be  permitted  to  enjoy  the  easement  in  connection  with 
that  part  of  his  premises  to  which  the  easement  was  appurtenant.  The 
erection  of.  the  building  upon  its  own  land  was  lawful,  and  does  not 
work  .a  forfeiture  of  the  easement.  Rexford  v.  Marquis,  7  Lans.  249- 
262f"Greene  v.  Canny,  137  Mass.  64;  Topling  v.  James,  13  C.  B.  N.  S., 
876.  An  unlawful  or  excessive  use  of  an  easement  may  be  enjoined, 
but  it  is  difficult  to  see  upon  what  principle  of  law  the  court  is  author- 
ized to  declare  it  forever  and  altogether  forfeited  and  extinguished  be- 
cause of  an  unauthorized  or  excessive  use.  It  is  a  valuable  property 
right,  and  we  know  of  no  authority  for  transferring  its  title,  against 
the  will  of  the  owner,  except  by  due  process  of  law,  involving  just  com- 
pensation. 

It  is  also  conceivable  that  an  authorized  and  unauthorized  use  may 
be  so  intermingled  as  to  justify  enjoining  any  use  until  the  circum- 
stances have  so  changed  that  the  authorized  use  may  be  permitted  with- 
out affording  opportunity  for  the  unauthorized  use  which  it  would  be 
difficult  to  discover  or  prove.  If  this  be  the  rule  a  situation  is  here  pre- 
sented justifying  an  injunction,  not  against  the  excessive  use,  but  re- 
straining any  use  until  the  building  is  so  altered  or  changed  that  that 
part  of  it  which  is  on  the  dominant  tenement  may  enjoy  the  easement 
without  permitting  its  enjoyment  by  the  tenants  and  occupants  of  other 
parts  of  the  building  who  have  no.  right  thereto.  Where  the  nature 
and  extent  of  the  use  of  the  easement  is,  as  here,  unrestricted,  the  use 
by  the  dominant  tenement  might,  of  course  be  enlarged  or  changed. 
•Allen  V.  Gomme,  11  Ad.  &  El.  759;  Arnold  v.  Fee,  148  N.  Y.  214,  42 
N.  E.  588;  Gillespie  v.  Weinberg,  148  N.  Y.  238,  42  N.  E.  676;  Dand 
V.  Kingscote,  6  M.  &  W.  173;  Sloom  v.  Holliday,  30  Law  Times,  757. 
But  the  owner  of  tlie  dominant  tenement  may  not  subject  the  servient 
tenement  to  servitude  or  use  in  connection  with  other  premises  to  which 
the  easement  is  not  appurtenant.     *     *     * 


Ch.  2)  EASEMENTS  289 

It  is  to  be  borne  in  mind  that  this  right  of  way  and  easement  were 
acc|uired  bv  deed,  and  the  rule  is  that  such  an  easement  is  not  ex- 
tinguished by  nonuser,  but  only  by  grant  or  adverse  possession.  Smyles 
VTTi^stings,  22  N.  Y.  217;  Welsh  v.  tayfor,  134  N.  Y.  450,' 31  N.  E. 
896,  18  L.  R.  A.  535;  Parker  v.  City  of  St.  Paul,  47  Minn.  317,  50, 
N.  W.  247.  Here  there  was  no  adverse  possession,  and  nothing  has 
been  done  with  the  intention  of  relinquishing  the  easement ;  but,  on, the 
contrary,  it  has  been  constantly  enjoyed,  and  the  complaint  merely  is 
of  a  use  unauthorized  in  part.  It  was  formerly  held  in  England  that 
the  easement  of  "ancient  lights"  might  be  lost  or  suspended  until  the 
premises  were  restored  to  tlieir  original  condition  by  enlarging  or 
changing  the  position  of  the  window,  but  it  is  doubtful  whether  that 
rule  still  prevails  (Tapling  v.  Jones,  13  C.  B.  [N.  S.]  876);  and,  more- 
over, it  was  never  given  place  in  our  jurisprudence  (Parker  v.  Foote, 
19  Wend.  319),  and  would  not  be  applicable  to  this  case  if  it  had.  The 
appellant  and  those  using  the  easement  without  authority  would  doubt- 
less be  liable  to  the  plaintiffs  in  damages.  Dennis  v.  Sipperly,  17  Hun, 
69 ;  Rexf  ord  v.  Marquis,  supra,  249,  262 ;  Davenport  v.  Lamson,  su- 
pra; Shroder  v.  Brenneman,  23  Pa.  348;  French  v.  Marstin,  32  N. 
H.  316. 

But  it  is  manifest  that  it  would  be  next  to  impossible  to  show  the 
dan;ages  or  to  enforce  the  rights  of  the  plaintiffs  under  an  injunction 
conrining  the  use  to  the  tenants  of  and  those  using  the  dominant  tene- 
ment. Although  equity  abhors  forfeitures  and  will  in  a  proper  case  re- 
lieve against  their  enforcement,  it  will  not  aid  their  enforcement  even 
where  it  would  interfere  against  the  same  at  law.  1  Pomeroy's  Eq.  Jur. 
(2d  Ed.)  §§  450,  459.  Yet  the  appellant  owner  is  responsible  for  the 
situation  which  enables  its  tenants  and  employes  to  use  the  easement, 
and  render  it  impossible  for  the  plaintiffs  to  know  which  have  and  which 
have  not  a  right  to  such  use.  Therefore,  while  equity  will  not  destroy 
the  appellant  owner's  easement,  it  will  grant  the  relief  necessary  to  pre- 
serve  the"  rights  of  the  plaintiffs.  It  is  manifest  that  these  rights  can 
only  be  effectively  preserved  by  enjoining  the  appellant  owner  from 
using  the  easement  while  its  premises  remain  in  their  present  condi- 
tion.    *     *     *  . 

TBe  judgment  should  therefore  be  modified  by  striking  out  all  pro- 
visions relating  to  a  forfeiture  of  the  easement,  and  modifying  the  in- 
junction so  as  to  enjoin  and  restrain  the  appellant  owner,  its  officers, 
agents,  and  employes,  from  using  the  easement,  and  from  furnishing 
occasion  or  extending,  by  implication  or  otherwise,  any  invitation  to 
the  tenants  or  persons  having  business  with  the  tenants  to  use  the  ease- 
ment, until  such  time  as  the  building  shall  be  so  changed,  altered,  or 
arranged  as  to  permit  tlie  enjoyment  of  the  easement  for  the  advantage 
of  the  dominant  tenement  only,  with  leave  to  the  appellant  owner  to 
apply  to  the  court,  at  the  foot  of  the  judgment,  on  notice  to  the  plain- 
tiffs or  their  successors  in  interest,  when  that  time  shall  have  arrived 
Big. Rights — 19 


290  RIGHTS  IN  THE  LAND   OF  ANOTHER  (Part  2 

to  vacate  the  injunction  as  to  the  dominant  tenement,  leaving  the  in- 
junction, however,  to  stand  permanently  as  to  the  remaining  premises ; 
and,  as  thus  modified,  the  judgment  should  be  affirmed,  without  costs 
of  the  appeal  to  either  party. 

Van  Brunt,  P.  J,,  and  Patterson  and  Hatch,  JJ.,  concurred. 
O'Brie^n,  J.,  dissented. ^- 


WINTER  V.  BROCKWELL. 

(Court  of  King's   Bench,   1807.     8   East,  308.) 

This  was  an  action  on  the  case  for  a  nuisance,  wherein  the  plaintiff 
complained,  that  being  lawfully  possessed  of  a  dwelling  house  with  the 
appurtenances  in  Long  Acre,  &c.  (Westminster),  into  which  the  light 
and  air  entered  by  means  of  a  window  from  a  certain  open  area  be- 
tween the  said  window  and  an  adjoining  house;  by  means  of  which 
open  area  also  noisome  smells  which  came  from  the  adjoining  house 
evaporated,  without  occasioning  any  nuisance  to  the  occupier  of  the 
plaintiff's  house ;  the  defendant  wrongfully  placed  a  skylight  over  the 
area  above  the  plaintiff's  window,  by  means. of  which  the  light  and  air 
were  prevented  from  entering  the  plaintiff's  window  into  his  house,  and 
noisome  smells  arising  from  the  adjoining  house  were  prevented  from 
evaporating,  and  entered  the  plaintiff's  dwelling-house,  &c.  Plea,  the 
general  issue.  At  the  trial  before  Lord  Ellenborough,  C.  J.,  at  the 
last  sittings  at  Westminster,  the  defence  set  up  was,  that  the  area 
which  belonged  to  the  defendant's  house  had  been  inclosed  and  covered 
by  a  skylight  in  the  manner  stated,  with  the  express  consent  and  ap- 
probation of  the  plaintiff,  obtained  before  the  inclosure  was  made,  who 
also  gave  leave  to  have  part  of  the  frame- work  nailed  against  his  wall. 
But  some  time  after  it  was  finished  the  plaintiff  objected  to  it,  and  gave 
notice  to  have  it  removed.  But  his  lordship  was  of  opinion,  that  the 
licence  given  by  the  plaintiff  to  erect  the  sky-light,  having  been  acted 
upon  by  the  defendant,  and  the  expense  incurred,  could  not  be  re- 
called, and  the  defendant  made  a  wrong-doer;  at  least,  not  without 
putting  him  in  the  same  situation  as  before,  by  offering  to  pay  all  the 
expenses  which  had  been  incurred  in  consequence  of  it:  and  under 
this  direction  the  defendant  obtained  a  verdict. 

Wigley,  (in  the  absence  of  the  Attorney  General)  now  moved  for  a 
new  trial :    but  after  stating  the  point  (a), 

7  2  See  Harvey  v.  Walters,  L.  R.  8  C.  P.  162  (1873) ;  Masonic  Temple  Ass'n 
V.  Harris,  79  Me.  250,  9  Atl.  737  (1887) ;  McMillan  v.  Cronin,  75  JS.  Y.  474 
(1878). 

A.  had  an  easement  of  light  for  certain  ancient  windows  overlooking  B.'s 
land.  He  enlarged  these  windows.  B.  built  so  as  to  shut  off  the  light 
from  both  the  new  and  the  old  part  of  the  windows,  this  being  a  practically 
unavoidable  consequence  of  his  building  in  such  a  way  as  to  cut  oft'  the  light 
from  any  part  of  the  windows.  Held,  A.  may  maintain  an  action  for  ob- 
structing ancient  lights.  Tapling  v.  Jones,  11  H.  of  L.  290  (1805).  Com- 
pare Heath  v.  Bucliuall,  L.  R.  8  Eq.  1   (18(19). 


■^P'<rt^  ,      ^A^ 


Ch.  2)  EASEMENTS  291 

Lord  Ellenborough,  C.  J.,  said,  that  the  Attorney  General,  who 
led  the  cause  at  the  trial,  had  himself  mentioned  this  case  at  the  begin- 
ning of  the  term,  in  the  argument  of  the  case  of  the  Quarriers  in  the 
isle  of  Purbeck;  certainly  without  intimating  any  disapprobation  of 
the  opinion  which  had  been  delivered  at  the  trial,  but  insisting  upon 
it  in  support  of  his  argument.  His  lordship  added,  that  the  point  was 
new  to  him  when  it  occurred  at  the  trial ;  but  he  then  thought  it  very 
unreasonable,  that  after  a  party  had  been  led  to  incur  expense  in  con- 
sequence of  having  obtained  a  Hcence  from  another  to  do  an  act,  and 
that  the  licence  had  been  acted  upon,  that  other  should  be  permitted  to 
recal  his  licence,  and  treat  the  first  as  a  trespasser  for  having  done 
that  very  act.  That  he  had  afterwards  looked  into  the  books  upon  this 
point,  and  found  himself  justified  by  the  case  of  Web  v.  Paternoster 
best  reported  in  Palmer  71,  but  reported  also  in  other  books  (b),  where 
Haughton,  J.,  kys  down  the  rule,  that  a  licence  executed  is  not  coun- 
termandable ;  but  only  when  it  is  executory.  And  here  the  Hcencewas 
executed. 

Wigley  thereupon  waived  his  motion."^ 


ROGERS  V.  STEWART  et  al 

(Supreme  Court  of  Vermont,  1833.     5  Vt.  215,  26  Am.  Dec.  29G.) 

This  was  an  action  on  the  case  for  the  Qbstruction  of  a  private  vvay 
of  the  plaintiff.  There  was  a  jury  trial  in  the  County  Court,  and  a  ver- 
dict for  the  plaintiff.  Several  exceptions  were  taken  to  the  instructions 
given  to  the  jury.  These,  including  some  points  not  urged  before  this 
Court,  appear  in  a  long  bill  of  exceptions,  allowed  by  the  Judges  of  the 

7  3  "An  easement  may  bC  lost  by  abandonment,  and  whether  there  is  an 
abandonment  is  ordinarily  a  question  of  intention.  If  the  extinguishment 
of  an  easement  by  the  execution  by  the  owner  of  the  servient  estate  of  a 
license  which  prevents  the  further  enjoyment  of  the  easement  rests  on  the 
ground  that  the  owner  of  the  easement  intentionally  abandoned  it, — and 
where  there  is  a  complete  extinguishment  it  may  well  rest  upon  that  ground, 
— his  intention  is  conclusively  presumed  in  favor  of  the  owner  of  the  servient 
tenement  who  executed  the  license,  because,  between  these  parties,  where 
one  acts  upon  the  license  of  the  other,  the  manifest  and  apparent  intention 
which  is  acted  upon  must  control  their  rights,  whatever  tlae  secret  intention 
of  the  licensor  may  be.  *  *  *  The  execution  of  the  license  worked  an  ex- 
tinguishment of  the  defendant's  easement.  As  against  the  plaintiffs,  he 
must  be  conclusively  presumed  to  have  intended  to  abandon  his  easement 
on  the  performance  of  the  condition  when  he  gave  the  license ;  and  the  li- 
cense having  been  acted  on,  and  being  irrevocable,  the  abandonment  became 
complete."  Knowlton,  J.,  in  Boston  &  P.  R.  Corp.  v.  Doherty,  154  Mass.  314. 
317,  28  N.   E.  277,   278  (1801). 

A  tenant  for  life  of  land,  having  an  easement  of  light  over  an  adjoining 
tract,  by  parol  authorized  the  owner  thereof  to  erect  a  building  thereon, 
which  was  done.  In  an  action  for  obstructing  the  light,  brought  by  the  re- 
mainderman in  fee,  who  had  subsequently  come  into  possession,  held,  the 
fact  that  the  defendant  bad  acted  on  the  faith  of  the  license  was  no  de- 
fense. Dyer  v.  Sanford.  9  Mete.  (Mass.)  395,  43  Am.  Dec.  399  (1845).  See 
Vogler  v.  Geiss.  51  Md.  407  (1879). 


292  RIGHTS   IN   THE  LAND   OF   ANOTHER  (Part  2 

County  Court.  The  material  facts  in  which,  and  the  arguments  of 
counsel,  sufficiently  appear  in  the  following  opinion  of  the  Court,  de- 
livered by 

Hutchinson,  C.  J.'^*  It  appears  by  the  Bill  of  Exceptions  in  this 
case,  that  the  plaintiff  owned  a  piece  of  land,  lying  northwestwardly  of 
the  common,  in  Middlebury,  and  had  used  and  occupied,  for  thirty  or 
forty  years,  a  foot-way  and  cart- way  from  this  land,  in  a  southeast- 
ward direction,  across  a  small  piece  of  land,  long  owned  by  Gamaliel 
Painter  and  his  heirs,  and  coming  out  into  the  highway,  or  common, 
near  where  the  church  now  stands.  The  erection  of  a  fence  on  the 
line  of  the  highway,  with  gates  for  foot-passengers  only,  said  fence  ex- 
tending across  this  private  way  of  the  plaintiff,  was  the  obstruction 
complained  of  in  the  declaration.  In  thi^,  the  plaintiff  complains  of  the 
obstruction  of  this  way  as  a  cart-way — not  as  a  foot-way.    *    *    * 

Stephens,  who  was  made  defendant,  but  has  since  deceased,  erected 
this  fence  as  a  door-yard  fence  to  a  house  near  by.  This  was  in  1825 
or  1826.  Afterwards  Stephens  leased  these  premises,  together  with 
a  factory  owned  by  him,  to  the  defendant.  Hough,  for  five  years ;  and 
afterwards  assigned  this  lease  to  the  defendants,  Stewart  and  Phelps. 
And  said  Hough  underlet  the  house,  to  accommodate  which  this  fence 
was  erected,  to  the  defendant  Morrison.    *    *    * 

The  defendants'  counsel  contended  in  «irgument,  that  the  plaintiff 
had  abandoned  this  way,  before  the  injury  complained  of ;  and  this 
destroyed  his  right  of  recovery,  if  such  right  would  otherwise  exist. 
This  argument  is  urged  upon  the  following  facts:  When  Stephens 
erected  said  fence,  he  moved  a  house  on  to  the  premises,  and  extended 
it  about  nine  links  to  the  north-east  over  his  line,  and  into  this  way  of 
the  plaintiff;  leaving  only  ten  links  for  a  passage,  which  is  not  suffi- 
cient for  a  carriageway.  Since,  which  time  it  could  not  be,  and  has 
notJDeen  tised  for  a  cart-way ;  though  there  was  proof  of  the  plaintiff's 
drawing  stone  in  the  rear  of  the  buildings,  which  it  would  have  been 
more  convenient  for  him  to  have  drawn  through  this  cart-way,  had  it 
been  open. 

The  defendants'^counsel  argued,  that  this  cart-way,  or  right  of  way, 
was  for  the  use  and  benefit  of  Rogers'  property,  in  the  rear  of  the 
Stephens'  buildings,  and  the  plaintiff  suffering  the  obstruction  to  re- 
main on  his  own  land,  must  be  considered  an  abandonment  of  the  way. 
And  further,  that,  while  the  house  stands  on  t^he  plaintiff's  own  land, 
and  wholly  obstructs  the  way,  the  plaintiff  can  suffer  no  damage  from 
any  other  obstruction.  While  the  plaintiff's  counsel  contend,  in  the 
first  place,  that,  the  whole  of  the  different  obstructions  being  put  there 
at  once  by  the  same  individual,  neither  he,  nor  any  person  claiming 
from  him,  can  justify  one  part  of  them  on  the  ground  that  another  part 
would  alone  have  produced  the  same  effect.  It  is  sufficient,  that  the 
part  complained  of,  produces  the  eft'ect.    In  the  second  place,  the  plain- 

1*  Part  of  the  opinion  is  omitted. 


Ch.  2)  EASEMENTS  293 

tiff's  counsel  contend,  that  finding  both  the  house  and  fence  in  his  way, 
it  became  his  business  to  cause  both  to  be  removed.  When  he  gets 
the  fence  removed,  he  may,  if  he  pleases,  remove  the  house  by  his  own 
act,  and  open  the  way  at  once.  The  Court  consider,  that,  if  the  plain- 
tiff himself,  had  placed  this  house  where  it  was  placed  by  Stephens,  ex- 
tending on  the  plaintiff's  land,  so  as  wholly  to  obstruct  this  way,  as  a 
cart-way,  the  evidence  of  this  would  have  been  pertinent  in  proving  an 
abandonment;  but  the  plaintiff's  neglecting  to  bring  an  appropriate 
action  for  the  placing  and  continuing  the  house  there,  is  no  evidence 
01  -ucli  abandonment^  until  a  longer  period  has  elapsed,  than  the  one 
now  proved ;  especially  as  the  front  fence,  of  which  he  now  complains, 
was  an  entire  obstruction  of  the  same  way.  Any  right  the  plaintiff 
may  have,  to  bjing  trespass  or  ejectment  for  the  placing  and  continu- 
ing  theliouse  partly  upon  his  land,  does  not  interfere  with  his  right  to 
maintain  this  aci;ion  for  the  obstruction  of  the  way.  *  *  * 
The  judgment  of  the  County  Court  is  affirmed.'" 


JENNISON  v.  WALKER. 
(Supreme  Judicial  Court  of  Massacliusetts,  1858.    11  Gray,  428.) 

Action  of  tort  for  breaking  and  entering  the  plaintiff's  close  in  New- 
ton. Answer,  a  right  to  enter  for  the  purpose  of  constructing  and 
maintaining  an  aqueduct  and  reservoir  for  conducting  water  from  a 
spring  thereon  to  land  of  the  defendant. 

At  the  trial  in  the  court  of  common  pleas,  the  following  facts  were 
proved:  In  1800  Phinehas  Jennison  (under  whom  the  plaintiff  claim- 
ed) conveyed  to  Stephen  Dana,  the  owner  of  land  adjoining,  (whose 
title  the  defendant  had,)  his  heirs  and  assigns  forever,  "the  right  and 
privilege  of  laying  an  aqueduct  from  the  principal  spring  and  springs, 
fountain  or  fountains  of  water  in"  the  close  in  question;  "likewise 
thej)rivilege  of  digging  and  sinking  sufficient  reservoirs  for  the  purr 
pose  of  the  aqueduct,  and  at  all  times  hereafter  the  privilege  of  going 
on  the  land  for  the  purpose  of  repairing  said  aqueduct ;    reserving  to 

T5A.  owned  land  to  which  was  appurtenant  an  easement  of  way  over  B.'s 
land.  The  way  remained  unused  for  many  years  by  A.  and  his  successors 
in  title,  they  having  no  occasion  to  use  the  same,  and  B.  cultivated  that 
part  of  his  land  over  which  A.  had  the  right  of  way.  Held,  A.  js  still  entitlefl^ 
to  the  way.  James  v.  Stevenson,  [189.3]  A.  C.  162.  Ace:  Johnson  v.  Stitt, 
21  K.  Inf29,  44  Atl.  513  (1899) ;  Boyd  v.  Hunt,  102  Tenn.  495,  52  S.  W.  131 
(1899).     Compare  Bowen  v.  Team,  6  Rich.  (S.  C.)  298,  60  Am.  Dec.  127  (1803). 

A.  had  a  right  of  way  ten  feet  wide  over  B.'s  land.  It  had  been  used  only 
for  a  footpath  for  many  years,  and  A.  had  built  a  summerhouse  that  pro- 
jected two  feet  into  the  strip.  B.  erected  a  stable  that  largely  covered  the 
strip.  Eight  months  Ipter  A.  brought  action  for  an  injunction  to  compel 
the  removal  of  the  stable.  Held,  under  the  circumstances_of  the  case^  he 
Is  not  entitled  thereto.     Young  v.  Sta7To:,"86'  L.  T.  R.' 41 '(1902). 


294  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

myself,  my  heirs  and  assigns,  as  much  water  as  will  be  necessary  for 
watering  the  cattle  which  shall  or  may  be  kept  in  sai3  pasture." 

Before  1816  there  was  a  reservoir  at  the  principal  spring  on  the 
servient  estate,  and  an  aqueduct  of  cedar  logs  laid  under  ground,  lead- 
ing therefrom  across  the  close  in  question  to  the  defendant's  land. 
After  1818  that  aqueducl  was  not  used  for  any  purpose,  and  between 
1818  and  1824  the  plaintiff's  grantors  removed  and  destroyed  portions 
of  these  logs,  and  from_1818  to  1855  the  defendant  and  his  grantors_ 
made  no  use  of  this  spring  or  aqueduct,  nor  attempt  to  lay  any  aque- 
duct." 

In  1855  the  defendant  entered  upon  the  plaintiff's  close,  cleared  out 
and  walled  up  the  spring,  and  laid  lead  pipes  therefrom  across  the 
plaintiff's  land  to  his  own,  ijn  a  different  direction  from  the  old  log 
a^queduct,  the  change  being  necessary  in  consequence  of  the  construe^ 
tion  of  a  railroad  across  the  line  of  the  former  aqueduct,  and  in  order 
to  go  through  a  culvert  in  the  embankment  of  the  railroad. 

Upon  these  facts  Sanger,  J.,  ruled  that  the  defendant  had  not  shown 
a  defence;  the  jury  found  a  verdict  for  the  plaintiff  forjiominal  dam- 
ages, and  the  defendant  alleged  exceptions.    *    *    * 

BiGELOW,  J.'^®  We  can  see  no  sufficient  reason  for  disturbing  the 
verdict  in  this  case. 

The  evidence  at  the  trial  not  only  proved  a  non-user  of  the  easement 
of  laying  and  maintaining  an  aqueduct  through  the  land  now  owned 
by  the  plaintiff  by  the  owners  of  the  dominant  tenement  for  more  than 
thirty  years,  but  also  established  a  possession  and  use  of  the  servient 
estate  by  the  plaintiff  and  his  grantors  during  the  same  period,  entire- 
ly inconsistent  with  and  adverse  to  the  existence  of  the  easement.  The 
right  or  easement  in  question  having  been  acquired  by  grant  and  not 
by  usej  there  might  have  been  difficulty  in  showing  a  loss  or  extinguish- 
ment of  it  by  proof  of  a  mere  omission  during  twenty  years  or  more 
to  exercise  the  right  by  an  actual  enjoyment  of  the  easement.  But  the 
removal  by  the  plaintiff's  grantors  of  the  logs  which  conveyed  the  wa- 
ter through  the  land  now  owned  by  the  plaintiff  rendered  the  enjoy- 
ment of  the  easement  impossible.  It  was  an  act  in  its  nature  essential- 
ly adverse.  It  effectually  hindered  the  exercise  of  the  right  and  op- 
erated to  annihilate  it.  After  this  removal  took  place,  no  means  were 
adopted  to  renew  the  enjoyment  of  the  privilege.  It  was  a  continuous 
disturbance  for  more  than  thirty  years.  The  non-iiser  of  the  easement 
%  the  owners  of  the  dominant  estate  united  with  a  use  of  the  servient 
estate  inconsistent  with  and  adverse  to  the  existence  of  the  easement 
during  this  period  of  time.  Upon  this  proof,  there  was  sufficient  to 
justify  the  inference  that  the  right  originally  conveyed  by  grant  had 
been  released  and  extinguished  by  a  subsequent  non-appearing  deedT 
The  doctrine  on  this  subject  is  fully  explained  and  illustrated  in  Ar- 

7  6  Part  of  the  opinion  is  omitted. 


Ch.  2)  EASEMENTS  295 

nold  V.  Stevens,  24  Pick.  Ill,  35  Am.  Dec.  305.    The  defendant  did  not 
claim  to  go  to  the  jury  at  the  trial,  and  the  evidence  was  in  our  judg- 
ment sufficient  to  warrant  a  verdict  for  the  plaintiff.    ♦    *    * 
Exceptions  overruled.''^ 


BROWNE  V.  TRUSTEES   OF   METHODIST  EPISCOPAL 
CHURCH  IN  CITY  AND  PRECINCTS  OF  BALTIMORE. 

(Court  of  Appeals  of  Maryland,  1S72.    37  Md.  108.) 

[Action  to  recover  damages  for  the  obstruction  of  an  alleged  right 
of  way. 

The  plaintiff  appellant  became  the  owner  of  Eont  Hill,  the  dom- 
inant estate,  in  1855,  upon  the  death  of  his  aunt,  a  tenant  for  life.  The 
way  was  in  existence  at  least  as  early  as  1814,  at  which  time  the  life 
tenant  had  acquired  her  interest.  The  servient  tract  now  owned  by  the 
defendant  appellees,  was  formerly  owned  by  one  Patterson.  Further 
fa^s  arTgiven  in  the  opinion.]  v 

7  7ACC.:     Baumau  v.  Waguer,  146  App.  Div.  191,  130  N.  Y.  Siipp.  1016  (1911). 

A.  had  a  right  bj'  deed  to  mine  ore  iu  B.'s  land.  For  forty  years  B.  and 
his  predecessors  in  title  continued  in  the  exclusive  and  uninterrupted  oc- 
cupation of  the  land,  cultivating  it  as  they  saw  tit.  At  the  end  of  that 
time  A.  exercised  his  right  to  mine,  and  B.  brought  trespass.  The  court 
held  that  the  right  had  not  been  lost  by  B.'s  possession,  saying  (per  Mor- 
ton, J.):  "in  the  case  at  bar  There  was  no  adverse  possession.  The  occu- 
pation of  the  owTiers  in  fee  was  consistent  with  the  rights  of  the  owners 
of  tlic  easement.  *  *  *  Here,  although  the  occupation  of  the  predeces- 
sors of  the  plaintiffs  was  not  consistent  with  the  exercise  of  the  right  claim- 
ed by  the  defendant,  yet  it  was  no  infringement  of  that  right.  They  did 
not  dig  any  ore,  they  did  not  preclude  any  other  persons  from  digging,  nor 
exclude  them  from  the  land.  Until  the  owners  of  the  easement  chose  to 
exercise  the  right  granted  to  them  it  was  inoperative,  and  left  the  owners 
of  the  soil  free  to  make  such  use  of  it  as  their  interest  might  require. 
Thompson  v.  Gregory,  4  Johns.  (N.  Y.)  SI,  4  Am.  Dec.  255  (1809).  By  the 
principles  of  law  governing  easements  of  this  kind,  the  owners  of  the 
soil  had  a  perfect  right  to  make  every  use  of  it  which  could  be  done  with- 
out infringing  the  servitude.  And  as  long  as  this  remained  unused  they 
were  entitled  to  the  whole  benefit  of  the  land  as  much  as  if  it  did  not  ex- 
ist."    Arnold  v.  Stevens,  24  Pick.  (Mass.)  106,  111,  35  Am.  Dec.  305  (1839). 

A.  laid  out  a  tract  of  land  in  town  lots  with  an  alley.  He  sold  to  X.  and 
Y.,  respectively,  lots  on  either  side  of  the  alley.  The  alley  was  never  ac- 
cepted by  the  public.  X.  enclosed  the  alley  in  his  lot  by  a  board  fence  and 
kept  exclusive  possession  of*  it  for  over  twenty  years  as  a  public  school 
ground,  x.  now  proposed  to  erect  a  school  Tio^iise  lipoii  the  alley  in  such  a 
way  as  to  cut  off  the  light  coming  to  Y.'s  house.  In  a  bill  by  Y.  to  enjoin 
such  erection,  held,  that  Y.  acquired  by  his  conveyance  from  A.  an  easement 
of  way,  liaht  and  air  over  "the  alley ;  and,  assuming  that  Y.  has  lost  his  ease- 
meiii  <:f  way  in  the  alley,  he  has  not  lost  his  easement  of  light  and  air.  Dill 
vTT/oara  of  KthK-ation  of  City  of  Camden,  47  N.  J.  Eq.  421,  20  Atl.  739,  lU 
L.  R.  A.   276    (1890). 

See,  also,  Reed  v.  Gasser,  130  Iowa,  87,  106  N.  W.  383  (1906) ;  Welsh  v. 
Taylor,  ]34  N.  Y.  450.  31  N.  E.  896,  18  L.  R.  A.  535  (1892);  Bombaugh  v. 
Miller,  82  Pa.  203   (1876). 


296  RIGHTS  IN   THE   LAND   OF   ANOTHER  (Part  2 

Stewart,  J.''^  *  *  *  j^  seems  from  the  evidence,  that  the  road 
in  question,  if  it  ever  existed  as  a  reservation  at  the  sale  of  Mrs.  Law- 
son's  property,  or  was  otherwise  acquired  as  a  servitude  on  the  prop- 
erty now  claimed  by  the  appellees,  was  closed  by  Patterson,  who  had 
purchased  the  lots,  in  the  year  1829;  and  was  then  opened  or  closed 
by  him,  as  it  suited  his  convenience.  Mr.  Browne,  the  appellant,  states 
that  when  he  visited  the  premises  in  the  year  1842,  the  road  was  closed, 
and  he  was  obliged  to  take  another  route  to  get  to  Font  Hill.  He  told 
his  aunt  holding  the  life  interest,  about  it;  and  she  said  it  had  not  been 
done  by  her  consent.  No  steps,  however,  seem  to  have  been  taken  by 
any  of  the  parties  to  have  the  road  opened.  The  appellees  became  en- 
titled to  the  property  in  the  year  1849,  at  which  time  the  road  was 
closed;  and  there  is  no  evidence  that  they  were  aware  of  any  right  or 
claim  to  the  road. 

It  appears  there  was  no  record  of  the  road,  to  which  they  could  re- 
sort, for  the  purpose  of  ascertaining  if  ther6  was  such  an  easement  on 
the  property. 

The  appellant,  according  to  his  own  statement,  had  some  informa- 
tion, or  belief,  as  to  the  right  of  way  through  the  property  of  the  ap- 
pellees to  Font  Hill. 

He  states,  he  knew  the  property  quite  intimately  since  1848.  He 
knew  that  the  road  was  closed  in  1842,  but  don't  recollect  that  he  told 
his  aunt  the  road  was  closed,  until  after  his  visit  in  1848,  when  she 
resided  in  Baltimore,  about  1849-50.  He  thinks  he  notified  the  appel- 
lees, in  1858-59,  of  his  intention  to  claim  the  road.  Don't  recollect  of 
giving  them  written  notice,  or  informing  the  Board  officially  of  his  in- 
tention. 

It  thus  appears,  that  although  the  company  had  purchased  the  prop- 
erty in  1849,  when  the  road  was  closed,  and  when  they  were  ignorant 
(from  any  thing  shewn)  of  any  intention  to  assert  a  right  to  the  road, 
or  that  there  was  any  dormant  right,  and  after  the  life  tenancy  had 
terminated  in  1855,  the  appellant  gave  no  formal  notice  to  the  Board 
of  his  intention  to  claim  the  road.  John  Morrow,  one  of  the  trustees 
of  the  company  and  of  the  committee  to  take  charge  of  the  cemetery, 
testifies,  that  many  dead  are  buried  on  the  property — most  thickly  in 
the  centre,  near  the  appellant's  property ;  and  that  he  never  heard  of 
a  right  of  way,  claimed  by  the  appellant,  prior  to  this  suit. 

If  the  property  of  the  appellees  ever  was^incumbered  with  the  servi- 
tude of  this  road  through  it,  enuring  to  the  benefit  of  the  appellant,  as 
the  proprietor  of  the  dominant  estate,  he  certainly  has  shown  great 
remissness  and  want  of  due  vigilance  in  the  assertion  of  his  rights; 
more  especially,  as  against  the  appellees,  who  have  been  preparing  and 
using  the  property,  including  the  bed  of  the  road,  for  a  cemetery,  the 
receptacle  of  the  deadj  whose  right  of  peaceable  and  quiet  asylum  has, 
incidentally,  if  not  primarily,  become  involved  in  this  question.' 

7  8  Part  of  the   opinion  is   omitted. 


Ch.  2)  EASEMENTS  297 

The  company  occupying  and  employing  the  property  for  such  lauda- 
ble purpose,  and  under  the  peculiar  circumstances,  so  well  calculated  to 
arrest  the  attention  of  all  parties  having  claims  upon  it,  and  to  prompt 
them,  if  so  inclined,  to  the  earliest  assertion  and  notice  of  them,  is  cer- 
tainly entitled  to  the  most  liberal  construction  of  the  sound  doctrine^qf 
estop2el  in  pais,  if  applicable ;  because  of  the  use  to  which  the  prop- 
erty was  being  devoted  and  dedicated. 

The  appellees  have  in  charge  the  remains  of  the  dead,  whose  right 
of  sepulture  should  not  be  disturbed,  except  upon  most  ui\equivocal  le- 
gal grounds ;  and  the  appellant,  in  undertaking  to  invade  their  domain, 
and  to  dispossess  the  trustees,  ought  to  be  able  and  prepared  to  vindi- 
cate his  claim,  and  to  show  by  clear  and  unmistakable  proof,  that  he  has 
been  guilty  of  no  laches. 

Their  possession  and  the  appropriation  of  the  property,  after  their 
purchase  in  1849,  when  the  road  had  been  long  discontinued,  and  with- 
out notice  of  the  claim  of  the  appellant,  was,  certainly,  not  that  sort 
of  "encroachment  on  the  soil,  or  rights  of  the  appellant,  as  amounted 
to  an  acknowledged  tort,  equally  known  and  open  to  the  notice  of  both 
parties,  which  confers  no  right,  until  it  has  continued  for  such  length 
of  time,  without  interruption  as  to  give  effect  to  the  limitation  of  the 
right  of  action  for  the  disturbance,"  to  use  the  language  adopted  in 
Tongue's  Lessee  v,  Nutwell,  17  Md.  230,  79  Am.  Dec.  649,  but  comes 
within  the  principle,  with  its  qualification,  recognized  in  the  above  case, 
and  also  in  the  case  of  Casey's  Lessee  v.  Inloes  et  al.,  1  Gill,  502,  39 
Am.  Dec.  658. 

The  principle  is  this,  where  one  stands  by  and  sees  another  laying 
out  money  upon  property,  to  which  he  has  some  claim  or  title,  and 
does  not  give  notice  of  it,  he  caimot  afterwards,  in  good  conscience,  set 
up  such  claim  or  title ;  except  where  the  encroachment  is  on  land,  the 
title  to  which  is  equally  well  known  or  equally  open  to  the  notice  of 
both  parties ;  where  the  claim  is  under  some  trust,  lien  or  other  right, 
not  equally  open  and  apparent  to  the  parties,  the  principle  applies  in 
favor  of  one  who  would  be  deceived  by  such  want  of  notice.  In  such 
case  the  doctrine  of  estoppel  in  pais  affords  a  protection  to  the  party 
misled  by  the  conduct  of  the  other  party. 

'TEFprayeF  of  the  appellees  assumes  this  theory  of  the  facts,  and  if 
the  circumstances  of  the  parties,  in  regard  to  the  road  in  question,  sus- 
tain the  proposition  of  the  prayer,  the  appellant  is  precluded  from  re- 
covery for  the  obstruction  of  the  road,  even  if  the  evidence  were  suf- 
ficient to  establish  the  easement  through  the  property,  by  long  ante- 
cedent user  and  enjoyment. 

After  the  termination  of  the  life  tenancy  in  the  property,  if  the  ap- 
pellant, as  the  proprietor  of  the  inheritance  of  the  alleged  dominant  es- 
tate, acquiesced  in  the  abandonment  of  the  road,  and  allowed  the  ap- 
pellees to  make  the  improvements  suitable  for  the  burial  of  the  dead, 
without  the  earliest  and  amplest  notice  of  his  rights,  he  is  precluded 
from  the  resumption  of  the  easement ;   because,  by  his  laches,  he  has 


298  RIGHTS  IN  THE   LAND   OF   ANOTHER  (Part  2 

induced  others  to  expend  their  money;   and  in  this  case  for  a  sacred 
purpose.    It  is  just  he  should  suffer  loss,  rather  than  those  jleceived^and 
misled  by  his  neglect.  .Under  such  circumstances  he  will  be  considered 
as  waiving  and  abandoning  his  claim. 
Judgment  reversed  and  new  trial  ordered.''' 


FITZPATRICK  v.  BOSTON  &  M.  R.  R. 

SMITH  V.  SAME. 

(Supreme  Judicial  Court  of  Maine,  1S91.     84  Me.  33,  24  Atl.  432.) 

Two  actions  of  trespass  for  wrongfully  placing  and  maintaining  ob- 
^tructions  across  the  plaintiffs'  right  of  way  across  the  defendant's 
land.     *     *     * 

WniTEHOUSE,  J.^**  The  plaintiffs  had  a  right  of  way  across  the  de- 
fendant's railroad.  In  1881  the  defendant  obstructed  it  by  digging  four 
cellars,  and  placing  houses  upon  them,  and  in  1888  disturbed  it  at  an- 
other point  by  making  excavations  for  the  purpose  of  laying  a  spur 
track  to  a  gravel  pit.  November  30,  1889,  the  plaintiffs  commenced 
these  actions  for  damages.     *     *     * 

1.  With  respect  to  the  obstruction  caused  by  digging  the  cellars  and 
erecting  the  houses  in  1881,  the  facts  are  undisputed.  A  public  high- 
way 50  feet  wide  was  established  and  opened  to  travel  in  1876,  lead- 
ing from  a  point  near  the  beginning  of  plaintiffs'  private  way,  in  the 
dividing  line  between  Berwick  and  South  Berwick,  northerly  about 
800  feet  across  the  defendant's  location ;  and  the  houses  in  question 
were  erected  by  the  defendant  across  the  private  way,  and  fronting 
on  the  public  way.  At  the  same  time  the  defendant  prepared  for  the 
use  of  the  plaintiffs,  as  a  substitute  for  that  part  of  the  old  way  thus 
obstructed,  a  new  and  equally  good,  but  slightly  circuitous^  \yayLleading 
over  the  highway  described,  and  returning  to  the  original  private  way. 
The  eff'ect  of  this  change  of  location  was  to  divert  the  course  of  travel 
about  20  feet  to  the  north  of  the  old  way.  The  defendant  corporation 
owned  in  fee  simple  all  the  lands  covered  by  the  houses  ;  the  location  of 
the  highway  and  the  plaintiffs'  present  private  way  substituted  for  the 
old  way;  also  the  lands  purchased  for  the  gravel  pit;  and  all  lands 
within  its  location  from  South  Berwick  station  easterly  beyond  the 

7  9Acc.:     Arnold  v.  Cornman,  50  Pa.  3(31  (1865). 

A.  had  a  prescriptive  way  over  B.'s  land.  An  intending  purchaser  of  B.'s 
land  asked  A.  if  he  had  a  "regular  way"  over  B.'s  land.  A.  said,  "JNo."  A. 
did  not  know  the  purpose  of  the  inquiry,  and  it  did  not  appear  that  the 
purchaser  relied  on  the  answer  in  buying  the  land.  Held,  A.  may  still  as- 
sert his  easement.  Nichols  v.  Peck,  70  Conn.  4:!9,  39  Atl.  803,  40  L.  K.  A. 
81,  66  Am.  St.  Rep.  122  (1898).  Compare  Stevens  v.  Dennett,  51  N.  U.  324 
(1872). 

See,  also,  Manning  v.  Port  Reading  R.  Co.,  54  N.  J.  Eq.  46,  33  Atl.  802 
(1895). 

8  0  The  statement  of  facts  Is  abridged  and  part  of  the  opinion  is  omif-ed. 


Ch.  2)  .  EASEMENTS  299 

farm  crossing  fixed  by  the  commissioners  at  the  time  of  the  location 
of  the  road  at  or  near  stations  24  and  39.     *     *     * 

In  the  case  at  bar,  the  obstruction  in  1881  was  unquestionably  of  a 
perrnanen^  character.  Four  cellars  were  dug  and  completed  across 
the  way,  and  houses  of  a  substantial  anc!  permanent  character  erected 
upon  them.  It  must  have  been  understood  by  all  the  parties  interested 
that  the  result  of  this  act  was  not  merely  a  temporary  obstruction,  but 
a_Bractical  extinguishmmt  of  so  much  of  the  way  as  was  covered  by 
the  houses.  It  was  a^  completed  act  in  1881.  There  was  no  expecta- 
tion that  the  houses  would  be  removed  or  3ie  cellars  filled  up.  The 
interruption  was  manifestly  final.  The  plaintiffs  then  had  a  cause  of 
action  for  an  mvasion  of  a  rlglit.  The  conditions  were  fixed  and  en-  ^  <--{i^'t,-e;^  i 
during,  and  were  not  expected  to  change.  _  ^ 

It  is  evident  that  the  plaintiffs  made  no  serious  objection,  if  any, 
to  the  change  in  the  way  thus  caused  by  the  erection  of  the  houses. 
JTheymade  no  claim  for  damages.  For<  seven  years  they  used  the 
substituted  way  as  occasion  required  without  complaint,  and  in  con- 
sideration of  the  advantage  of  being  connected  with  the  highway,  made  """^ 
safe  and  convenient  at  public  expense,  they  evidently  accepted  the  new  '">  ■  ■  d^ 
way  in  lieu  of  that  destroyed  by  the  cellars  and  buildings.  Their  con- 
duct for  seven  years  succeeding  this  interruption  sufficiently  indicates 
that  there  was  no  intention  on  their  part  to  raise  any  question  in  re- 
gard to  it  until  the  excavation  in  1888.  It  appears  to  have  been  mjJ.- 
tually  understood  that  that  portion  of  the  way  covered  by  the  houses 
was_finalTy~a5an~d6hed.  The  plaintiffs  silently  acquiesced  in  the  change, 
and  intentionally  surrendered  the  old  way  in  consideration  of  the  dedi- 
cation of  and  an  agreement  for  the  new  one  opened  for  their  benefit. 
"It  is  not  the  duration  of  the  cesser  to  use  the  easement,  but  the  nature 
of  the  act  done  by  the  owner  of  the  easement,  or  of  the  adverse  act 
acquiesced  in  by  him,  and  the  intention  which  one  or  the  other  indi- 
cates, that  is  material."     Pope  v.  Devereux,  5  Gray  (Mass.)  412.^^ 

[The   plaintiffs    recovered   nominal   damages   for   the   obstructions 
caused  in  1888.] 

81  Ace:     Pope  v.  Devereux,  5  Gray  (Mass.)  409  (18.56). 

"If.  then,  the  predecessors  of  the  defendants,  iu  consideration  of  the  clos- 
ing of  said  portion  of  the  north  and  south  alley,  granted  to  plaintiffs  and 
to  their  predecessors  a  right  of  way  over  the  east  and  west  alley  in  lieu 
thereof,  which  was  accepted  by  the  plaintiffs  and  their  predecessors,  the  de- 
feFdanfs  will  not  now  be  allowed  to  close  the  new  or  siibstituted  alley  with- 
out  first  restoring  the  old  one ;  and  the  fact  that  such  grant  was  oral  mat- 
ters  not,  if"bn  tlie  fafETi  of  "if  rights  have  been  acquired  or  relinquished  and 
acted  upon.  *  *  *  And  where  the  owner  of  a  right  of  way.  whether  ac- 
quired by  prescription  or  otherwise,  consents  to  Ihe  closing  of  the  said  right 
of  way  in  consideration  of  substituting  and  granting  to  him  a  new  one,  the 
right  to  the  use  of  such  new  way  at  once  attaches,  and  he  is  not  required  to 
use  the  new  way  for  a  period  of  time  to  give  him  title  by  prescTiption." 
Straup,  J.,  in  Thompson  v.  Madsen.  20  Utah,  ^.20,  332,  SlPac.  160  (lUl).")). 
See,  also,  Home  v.  Widlake,  Yelv.  141  (1G08) ;  Rcignolds  v.  Edwards.  Willes 
282  (1741);  I^vell  v.  Smith,  3  C.  B.  N.  S.  120  (1857);  Wright  v.  Willis,  6H 
S.  W.  991,  23  Ky.  Law  Rep.  5G5  (1901) ;  Davidson  v.  Kretz,  127  Minn.  313, 
149  N.  W.  652  (1914) ;  Hamilton  v.  White,  5  N.  Y.  9  (1851). 


300  EIGHTS  IN   THE   LAND   OF   ANOTHER  (Part  2 


RITGER  V.  PARKER. 

(Supreme  Judicial  Court  of  Massachusetts,  1851.    8  Gush.  145,  54'  Am.  Dec. 

744.) 

f 

This  was  an  action  of  trespass  quare  clausum  fregit.  The  defendant, 
in  justification  of  the  alleged  trespass,  relied  on  a  right  of  way  over 
the  plaintiff's  close,  as  appurtenant  to  an  adjoining  lot  oi  land,  belong- 
ing to  the  defendant.  At  the  trial  in  the  court  of  common  pleas,  be- 
fore Mellen,  J.,  the  following  facts  were  proved  or  admitted: 

Abel  Corey  on  the  11th  of  June,  1836,  conveyed  to  James  Gardner 
the  lot  now  held  by  the  defendant;  James  Gardner,  on  the  24th  of 
September,  1836,  mortgaged  it  to  Margaret  Gardner;  who  took  pos- 
session to  foreclose  on  the  5th  of  April,  1841 ;  and  on  the  26th  of 
September,  1842,  conveyed  the  same  to  Gilbert  Parker ;  the  mortgage 
was  foreclosed  on  the  23d  of  April,  1844;  and  on  the  15th  of  Sep- 
tember, 1847,  Gilbert  Parker  conveyed  to  the  defendant. 

The  plaintiff's  title  to  the  locus  in  quo  was  as  follows :  Isaac  Perry 
conveyed  to  James  Gardner  on  the  10th  of  December,  1839 ;  James 
Gardner  on  the  11th  of  December,  1839,  mortgaged  to  Margaret  Gard- 
ner, who  took  possession  on  the  5th  of  April,  1841,  for  the  purpose  of 
foreclosing  this  mortgage ;  and  the  same  was  actually  foreclosed  on 
the  23d  of  April,  1844 ;  and  Margaret  Gardner,  on  the  10th  of  May, 
1844,  conveyed  to  the  plaintiff. 

On  these  facts,  the  presiding  judge  ruled^  that  if  any  right  of  way 
existed,  as  appurtenant  to  the  defendant's  close,  over  the  close  of  the 
plaintiff,  prior  to  the  10th  of  December,  1839,  such  right  of  way  was 
^tingiiished  before  the  defendant's  close  was  conveyed  to  him. 
Whereupon  the  jury  returned  a  verdict  for  the  plaintiff,  and  the  de- 
J5.ndant  alleged_exceptions.     *     *     * 

SiiAW,  C.  J.^^  To  an  action  of  trespass  quare  clausum,  the  defend- 
ant sets  up  a  right  of  way,  to  pass  on  and  over  the  close  of  the  plain- 
tiff ;  and  insists,  that  as  he  entered  in  the  exercise  of  that  right,  such 
entry  was  no  trespass. 

It  appears  from  the  report  that  the  plaintiff  and  the  defendant  own 
estates  adjoining  each  other,  and  the  defendant,  as  such  owner,  claims 
a  right  of  way,  as  annexed  to  his  estate.  The  plaintiff  insists,  that  even 
though  such  right  did  formerly  exist  by  grant  or  prescription,  for 
the  owner  of  the  estate  now  owned  by  the  defendant,  in  and  over  the 
estate  now  owned  by  the  plaintiff,  such_fiasement  has.  been  extinguished, 
by  unity  of  title  and  possession  of  the  two  estates,  in  one  and  the 
same  person  at  the  same  time.  To  determine  .this,  it  is  necessary  to 
examine  the  facts  furnished  by  the  report.     *     *     * 

But  upon  principle  it  seems  to  us,  that  in  order  to  extinguish  an 
easement,  by  the  unity  of  title  and  possession,  both  of  the  dominant 
and  servient  tenements,  in  the  same  person,  he  should  have  a  perma- 

82  Part  of  tlie  opinion  is  omitted. 


Ch.  2)  EASEMENTS  301 

nent  and  enduring  estate,  an  estate  in  fee  in  both.  This  results  from 
the  consideration  of  j__lew  obvious  principles.  An  easement  oi^seryi- 
tude  is  a  right,  which  one  proprietor  has  to  some  profit,  benefit,  or  ben- 
eficial use,  out  of,  in,  pr  over  the  estate  of  another  proprietor.  An 
owner  of  land,  therefore,  cannot  have  an  easement  in  his  own  estate 
in  fee,  for  the  plain  and  obvious  reason,  that  in. having  the  jus  dis- 
ponendi — the  full  and  unlimited  right  and  power  to  make  any  and 
every  possible  use  of  the  land — all  subordinate  and  inferior  derivative 
rights  are  necessarily  merged,  and  lost  in  the  higher  right.  He  may 
use  every  part  of  the  surface  for  a  way,  if  he  chooses,  and  therefore 
has  no  occasion  to  claim  any  particular  way ;  and  so  of  every  other  use, 
to  which  land  may  be  subjected.  If,  therefore,  after  such  merger, 
the  owner  grants  away  a  portion  of  his  estate,  it  is  the  creation  of  a 
new  estate,  and  not  the  revival  of  an  old  one.  And  although  he  may 
make  a  grant  of  that  particular  land,  which  formerly  constituted  one 
of  the  separate  estates,  which  coalesced  in  him,  yet  it  is  not  with  its 
former  incidents,  unless  it  is  done  by  force  of  the  grant  itself,  by  such 
words  of  description. as  could  bring  them  into  being,  by  way  of  new 
grant.     *     *     * 

This,  of  course,  does  not  extend  to  watercourses  and  such  natural 
incidents  as  belong  to  the  land  itself,  and  are  inseparable  from  it. 

From  this  view  of  the  subject  it  seems  manifest,  tliat  the  merger  of 
the  easement,  arising  from  unity  of  title  and  possession,  which  will 
extinguish  and  put  an  end  to  such  easement,  arises  from  that  unlimited 
power  of  disposal^  which  will  enable  the  owner  to  grant  any  part  of 
the  soil  with  the  former  incidents,  or  to  grant  it  without  the  former 
incidents  or  create  and  annex  to  it  or  subject  it  to  new  incidents  in 
favor  of  another  estate,  at  his  own  will  and  pleasure,  ^uch  a  power 
^f  disposal  can  only  exist  when  the  same  proprietor  has  a  permanent 
estate  in  both  tenements,  not  liable  to  be  defeated  by  the  performance 
of  a  condition  or  happening  of  any  event  beyond  his  control,  and^ 
where  the   estates  cannot  again   be  disjoined  by   operation  of   law. 

And  it  seems  equally  clear,  that  the  two  estates  did  not  merge, 
whilst  held  by  Mrs.  Gardner,  as  mortgagee  only,  although  mortgagee  in 
fee.  So  long  as  she  held  them,  they  were  both  defeasible,  and  defeasi- 
ble upon  different  conditions,  (the  payment  of  distinct  debts,)  and  for 
aught  that  appears,  conditions  to  be  performed  by  different  persons, 
because  the  respective  equities  of  redemption  might  be  held  by  differ- 
ent persons.  So  long  as  she  held  them,  one  might  have  been  redeemed 
and  the  other  foreclosed  without  any  act  of  hers ;  and  a  foreclosure  or 
redemption  or  either  would  have  entirely  effected  a  separation  of 
the  two,  each  retaining  its  own  incidents.  But  she  conveyed  one  be- 
f ore  foreclosure ;  and  when  foreclosed,  the  estates  were  in  different 
persons;  the  defendant's  was  then  held  by  Gilbert  Parker,  and  the 
plaintiff's  by  Margaret  Gardner.     *     *     * 


Ax 


302  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

The  court  are  therefore  of  opinion,  that  if  the  defendant  and  those 
whose  estates  he  holds  had  a  right  of  way  over  the  plaintiff's  tenement 
prior  to  the  conveyances  to  James  Gardner,  such  right  was  not  extin- 
guished by  any  unity  of  title  and  possession  set  forth  in  the  re£ort. 

New  trial  ordered.®' 

8  3  A.  owned  in  fee  a  tract  of  land  to  which  was  appurtenant  a  right  of 
way  over  an  adjoining  tract  owned  by  X.  in  fee.  A.  mortgaged  to  B.  the 
dominant  land,  the  riglit  of  way  being  specifically  included.  X.  then  bought 
the  dominant  land  subject  to  the  mortgage;  he  opened  a  new  way  from  the 
dominant  tract  over  another  piece  of  land  owned  by  him,  closed  the  original 
way  and  built  a  terrace  over  it  upon  the  original  servient  tract.  This  lat- 
ter tract  he  then  conveyed  to  Y.  in  fee,  the  deed  making  no  mention  of  any 
easement.  Later  C.  bought  the  dominant  piece  under  a  foreclosure  sale. 
Held,  C.  has  the  original  right  of  way  over  the  tract  now  owned  by  Y. 
Duval  V.  Becker,  81  Md.  537,  32  Atl.  308   (1895). 

The  easement  is  not  extinguished  where  the  dominant  and  servient  es- 
tates are  held  by  one  person — as  a  fee  simple  and  as  a  base  fee  respectively ; 
The  King  v.  The  Inhabitants  ^6f  Hermitage,  Carth.  239  (1692);  in  tee  ami 
under  a  500-year  lease,  Thomas  v.  Thomas,  2  C,  M.  &  R.  34  (1835) ;  in  sev- 
eralty and  in  common,  Dority  v.  Dunning,  78  Me.  381,  6  Atl.  6  (1886).  See, 
also,  James  v.  Plant,  4  Ad.  &  j:.  749  (1836) ;  Kilgour  v.  Gaddes,  [1904]  1  K. 
B.  457 ;  Richardson  v.  Graham,  [1908]  1  K.  B.  39 ;  In  re  Bull,  15  R.  I.  534,  10 
Atl.  484   (1887). 

The  easement  was  held  to  be  extinguished  by  merger  in  Capron  v.  Greenwav. 
74  Md.  289,  22  Atl.  269  (1891) ;  Morgan  v.  Meuth,  GO  :\Iich.  238,  27  N.  W.  509 
(1886). 

A  way  of  necessity  ceases  when  the  necessity  ceases.  Holmes  v.  Goring, 
2  Bing.  76  (1824) ;  Pierce  v.  Selleck,  18  Conn.  321  (1847) ;  Oliver  v.  Hook, 
47  Md.  301  (1877). 

Where  the  new  access  is  permissive  only,  the  way  of  necessity  is  not  ex- 
tinguished. Lide  V.  Hadley,  36  Ala.  627,  76  Am.  Dec.  338  (1860) ;  Palmer  v. 
Palmer,  150  N.  Y.  139,  44  N.  E.  966,  55  Am.  St.  Rep.  653   (1896). 

For  otMer  cases  in  which  the  easement  ceases,  see  Shirley  v.  Crabb,  ante, 
p.  240. 


Ch.  3)  LICENSES  303 

CHAPTER  III 

LICENSES 


WOOD  V.  LAKE. 
(Court  of  King's  Bench,  1751.     Sayer,  3.)i 

In  a  case  reserved,  in  an  action  upon  the  case,  it  was  stated;  that 
the  defendant  had  agreed,  by  a  jarjjl_  agreement,  that  the  plaintiff 
should  have  the  liberty  of  stacking  coals  upon  part  of  a  close  belonging 
to  the  defendant,  for  the  terrn  of  seven  years,  and  that,  during  this 
term,  he  should  have  the  sole  us€  of  that  part  of  the  close,  upon  which 
he  was  to  have  the  liberty  of  stacking  coals ;  and  that,  after  the  plain- 
tiff had,  pursuant  to  this  agreement,  enjoyed  the  liberty  of  stacking 
coals  three  yeairs^he  defendant  locked  up  the  gate  of  the  close.  ^ 

The  question  was,  \yhether_this  agreement  was  good  for  seven  years? 

Lee,  C.  J.,  and  Denison,  J.,  were  of  opinion,  that  it  was. 

And  by  them. — In  the  case  of  Webb  v.  Paternoster,  Palm.  71,  it  is 
laid  down,  that  the  grant  of  a  license  to  stack  hay  upon  land  does  not 
amount  to  a  lease  of  the  land ;  and,  although  it  be  in  that  case  said, 
that  such  a  license,  provided  the  grant  be  for  a  time  certain,  is  irrevo- 
cable, it  by  no  means  follows,  that  an  interest  in  the  land  does  thereby 
pass.     As  the  agreement  in  the  present  case  was  only  for  an^ase 


■^menti  and  not  Tor  an  interest  in  the  land,  it  did  not  amount  to  a  lease, 
and  consequently  it  was,  notwithstanding  the  Statute  of  Frauds  and 
_Perjuries,  good  for  seven  years. 

Wright,  J.,  was  absent. 

Foster,  J.,  concurred  in  opinion,  that  the  agreement  did  not  amount 
to  a  lease;  but  he  inclined  to  be  of  opinion,  that  the  words  in  the 
Statute  of  Frauds  and  Perjuries,  any_uncertain  interest  in  land,  do 
extend  to  this  agreement,  and  consequently  that  it  Avas  not  good  for 
more  than  three  years. 

Lee,  C.  J.,  and  Denison,  J.,  inclined  to  be  of  opinion,  that  the 
words  in  that  statute,  any  uncertain  interest  in  land,  do  relate  only  to 
interests,  which  are  uncertain  as  to  the  time  of  their  duration. 

After  taking  time  to  consider,  it  was  holden  that  the  agreement  was 
good  for  seven  years. 

1  S.  c,  13  M.  &  W.  848,  note. 


t<:.  cO 


304  RIGHTS  IN   THE   LAXD   OF  ANOTHER  (Part  2 

HEWLINS  V.  SHIPPAM. 

(Court  of  King's  Bench,  1S26.    5  Barn.  &  C.  221.) 

[Case  for  wrongfully  obstructing  a  drain.] 

The  plaintiff  was  a  lessee  of  the  Swan  Inn,  at  Chichester,  under  W. 
and  E.  Humphrey.  In  May,  1819,  W.  and  E-  Humphrey  rebuilt  the 
Swan  Inn,  at  Chichester,  and  being  desirous  to  construct  a  drain  in 
the  adjoining  premises  (in  the  possession  of  the  defendant)  applied  to 
Wills,  tlie  landlord,  who  said  he  had  no  objection  if  his  tenant  had  not 
The  Humphreys  further  agreed  to  repair  the  defendant's  premises,  to 
raise  his  chimnies,  and  to  pave  his  yard.  The  defendant  assented  to 
the  making  the  drain  upon  these  terms,  and  they  raised  the  defendant's 
chimnies  and  paved  his  yard,  and  thereby  incurred  an  expense  of  100/. 
The  drain  was  constructed,  it  was  paved  at  the  bottom,  and  covered 
with  solid  stone,  and  the  sides  were  brick.  Upon  these  facts,  Graham, 
B.,  was  of  opinion  that  the  right  claimed  under  the  license  granted  by 
the  defendant  and  his  landlord,  to  have  the  drain  in  the  soil  of  another, 
was  an  uncertain  interest  in  the  land,  within  the  first  section  of  the  stat- 
ute of  frauds,  and  not  being  granted  by  any  instrument  in  writing,  the 
plaintiff  acquired  under  it  a  right  at  will  only,  which  was  determined 
T)y  the  defendant's  stopping  up  the  drain.  He  therefore  directed  a 
nonsuit,  with  liberty  to  the  plaintiff  to  move  to  enter  a  verdict. 

Taddy,  Serjt.,  in  last  Easter  term,  obtained  a  rule  nisi  for  that  pur- 
pose. 

BaylSy,  j.2  *  *  *  i^  appeared  in  evidence  upon  the  trial  that 
the  drain  was  made  in  1819,  at  the  expense  of  the  Humphreys,  with 
the  consent  of  the  defendant  and  Mr.  Wills,  and  that  the  Humphreys 
laid  out  some  money  in  improving  the  defendant's  premises,  but  noth- 
ing was  said  as  to  how  long  the  drain  was  to  continue,  nor  was  any 
thing  in  writing  between  any  of  the  parties ;  and  when  the  incon- 
veniences such  a  drain  may  occasion  from  smells,  and  the  necessity 
of  cleaning  it  are  considered,  it  is  almost  impossible  to  suppose  that 
Wills  and  the  defendant  meant  to  run  all  risks,  and  allow  the  parties 
an  absolute  interest  so  long  as  the  defendant  should  continue  in  pos- 
',^jL..d/t' ..^^  session,  or  so  long  as  it  should  be  requisite,  &c.  But  suppose  this 
had  been  the  intention,  can  such  an  interest  be  created  by  parol?  A 
^r-^  right  of  way  or  a  right  of  passage  for  water,  (where  it  does  not  create 
an  interest  in  the  land,)  is  an  incorporeal  right,  and  stands  upon  the 
' ,  /■(  same  footing  with  other  incorporeal  rights,  such  as  rights  of  common, 

rents,  advowsons,  &c.  It  lies  not  in  livery,  but  in  grant,  and  a  free- 
^•^  hold  interest  in  it  cannot  be  created  or  passed,  (even  if  a  chattel  in- 

terest may,  which  I  think  it  cannot,)  otherwise  than  by  deed.     *     *     * 

In  Fentiman  v.  Smith,  4  East,  107,  where  the  plaintiff  claimed  to 
have  passage  for  water  by  a  tunnel  over  defendant's  land.  Lord  Ellen- 

2  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Ch.  3)  LICENSES  305 

borough  lays  it  down  distinctly :  "The  title  to  have  the  water  flowing 
in  the  tunnel  over  defendant's  land  could  not  pass  by  parol  license  with- 
out deed."  Upon  these  authorities  we  are  of  opinion,  that  although  a 
parol  license  might  be  an  excuse  for  a  trespass  till  such  license  were 
"countermandedT^that  a  right  and  title  to  have  passage  for  the  water, 
for  a  freehold  interest,  required  a  deed  to  create  it,  and  that,  as  there 
has  been  no  deed  in  this  case,  the  present  action,  which  is  founded  on 
a  right  and  title,  cannot  be  supported.  The  case  of  Winter  v.  Brock- 
well,  8  East,  309,^  which  was  relied  upon  on  the  part  of  the  plaintitt, 
appears  clearly  distinguishable  from  the  present.  All  that  the  defend- 
ant there  did,  he  did  upon  his  own  land.  He  claimed  no  right  or  ease- 
ment upon  the  plaintifif's.  The  plaintiff  claimed  a  right  and  easement 
against  him,  viz.  the  privilege  of  light  and  air  through  a  parlor  window, 
and  a  free  passage  for  the  smells  of  an  adjoining  house  through  de- 
fendant's area ;  and  the  only  point  decided  there  was,  that  as  the  plain- 
tiff had  consented  to  the  obstruction  of  such  his  easement,  and  had 
allowed  the  defendant  to  incur  expense  in  making  such  obstruction,  he 
could  not  retract  that  consent  without  reimbursing  the  defendant  that 
expense.  But  that  was  not  the  case  of  the  grant  of  an  easement  to  be 
exercised  upon  the  grantor's  land,  but  a  permission  to  the  grantee  to  use 
his  own  land  in  a  way  in  which,  but  for  an  easement  of  the  plaintiff's, 
such  grantee  would  have  had  a  clear  right  to  use  it.  Webb  v.  Pater- 
noster, Palm.  71 ;  Wood  v.  Lake,  Sayer,  3 ;  and  Taylor  v.  Waters,  7 
Taunt.  374,  were  not  cases  of  freehold  interest,  and  in  none  of  them 
was  the  objection  taken  that  the  right  lay  in  grant,  and  therefore  could 
not  pass  without  deed.  These,  therefore,  cannot  be  considered  as  au- 
thorities upon  the  point ;  and  on  these  grounds,  therefore,  that  the  right 
claimed  by  the  declaration  is  a  freehold  right,  and  that  if  the  thing 
claimed  is  to  be  considered  as  an  easement,  not  an  interest  in  the  land, 
_such  a  right  cannot  be  created  without  deed ;  we  are  of  opinion  that 
the  nonsuit  was  right,  and  that  the  rule  ought  to  be  discharged. 
Rule  discharged. 


UGGINS  V.  INGE  et  al. 
(Court  of  Common  Pleas,  1831.     7  Bing.  682.) 

TiNDAL,  C.  J.*  It  will  be  unnecessary  on  the  present  occasion  to 
consider  more  than  one  of  the  questions  which  have  been  argued  at 
the  bar,  namely,  whether  the  present  action,  upon  the  facts  stated  in 
the  award  of  the_ar|)itrator,  is  maintainable  against  the  defendants. 

The  action  is,  in  point  of  form,  an  acti^  of  Jort,  and  charges  the 
defendants  with  wrongfully  continuing  a  certain  weir  or  fletcher, 
which  the  defendants  had  before  erected  upon  one  of  the  banks  of 

8  Aute,  p.  290. 

*  The  statement  of  facts  is  omitted. 

BlG.RlGHTS— 20 


f<l 


306  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

the  river,  and  by  that  means  wrongfully  continuing  the  diversion  tif 
the  water,  and  preventing  it  from  flowing  to  the  plaintiff's  mill  in  the 
manner  it  had  been  formerly  accustomed  to  do. 

It  appeared  in  evidence  before  the  arbitrator,  that  the  bank  of  the 
river,  which  had  been  cut  down,  was  the  soil  of  the  defendants ;  and 
that  the  same  had  been  cut  down  and  lowered,  and  the  weir  erected, 
and  the  water  thereby  diverted  by  them,  the  defendants,  and  at  their 
expense,  in  the  year  1822,  under  a  parol  license  to  them  given  for  that 
purpose  by  the  plaintiff's  father,  the  then  owner  of  his  mill ;  and  that 
in  the  year  1827,  the  plaintiff's  father  represented  to  the  defendants, 
that  the  lowering  and  cutting  down  the  bank  were  injurious  to  him  in 
the  enjoyment  of  his  mill,  and_had  .called  upon  them  to.  restore  the 
bank  to  its  former  state  and  condition ;  with  which  requisition  the  de- 
fendants had  refused  to  comply. 

The  question,  therefore,  is,  whether  such  non-compliance,  and  the 
keeping  the  weir  in  the  same  state  after,  and  notwithstanding_the_coun2. 
termand  of  the  license,  is  such  a  wrong~done  on  the  part  of  the  de- 
fendants as  to  make  them  liable  to  this  action. 

The  argument  on  the  part  of  the  plaintiff  has  been,  that  such  parol 
Ucense  is,  in  its  nature,  countermandable  at  any  time,  at  the  pleasure 
of  the  party  who  gave  it.  That  to  hold  otherwise,  would  be  to  allow 
to  a  parol  license  the  effect  of  passing  to  the  defendants  a  permanent 
interest  in  part  of  the  water  which  before  ran  to  the  plaintiff's  mill; 
which  interest,  at  common  law,  could  only  pass  by  grant  under  seal,  be- 
ing an  incorporeal  hereditament,  and  which,  at  all  events,  would  be 
determinable  at  the  will  of  the  grantor  since  the  statute  of  frauds,  as 
being  "an  interest  in,  to,  or  out  of  lands,  tenements,  and  heredita- 
ments." 

If  it  was  necessary  to  hold,  that  a  right  or  interest  in  any  part  of 
the  water,  which  before  flowed  to  the  plaintiff's  mill,  must  be  shown 
to  have  passed  from  the  plaintiff's  father  to  the  defendants  under  the 
license,  in  order  to  justify  the  continuance  of  the  weir  in  its  original 
state,  the  difficulty  above  suggested  would  undoubtedly  follow.  For  it 
cannot  be  denied  that  the  right  to  the  flow  of  the  water,  formerly  be- 
longing to  the  owner  of  the  plaintiff's  mill,  could  only  pass  by  grant, 
as  an  incorporeal  hereditament,  and  not  by  parol  license. 

But  we  think  the  operation  and  effect  of  the  license,  after  it  has  been 
completely  executed  by  the  defendants,  is  sufficient,  without  holding  it 
to  convey  any  interest  in  the  water,  to  relieve  them  from  the  burthen  of 
restoring  to  its  former  state  what  has  been  done  under  the  license,  al- 
though such  license  is  countermanded;  and,  consequently,  that  they 
are  not  liable  to  an  action  as  wrongdoers,  for  persisting  in  such  refusal. 

,The  parol  license,  as  it  is  stated  in  the  award  of  the  arbitrator,  was 
a  license  to  cut  down  and  to  lower  the  bank,  and  to  erect  the  weir. 
Strictly  speaking,  if  the  license  was  to  be  confined  to  those  terms,  it 
was  at  once  unnecessary  and  inoperative  j  for  the  soil  being  the  prop- 
erty of  the  defendants,  they  would  have  the  right  to  do  both  those 


Ch.  3)  LICENSES  307 

acts  without  the  Consent  of  the  owner  of  the  lower  mill.  But  as  the 
diversion  of  part  of  the  water  which  before  flowed  to  that  mill  would 
be  the  necessary  consequence  of  such  acts,  it  must  be  taken  that  the 
object  and  effect  of  such  license  was  to  give  consent,  on  the  part  of 
the  plaintiff's  father,  to  the  diverting  of  the  water  by  means  of  those 
alterations. 

We  do  not,  however,  consider  the  object,  and  still  less  the  effect,  of 
the  parol  license,  to  be  the  transferring  from  the  plaintiff's  father  to 
the  defendants  any  right  or  interest  whatever  in  the  water  which  was 
before  accustomed  to  flow  to  the  lower  mill,  but  simply  to  be  an  ac- 
knowledgment, on  the  part  of  the  plaintiff's  father,  that  he  wanted 
such  water  no  longer  for  the  purposes  of  his  mill ;  and  that  he  gave 
back  again  and  yielded  up,  so  far  as  he  was  concerned,  that  quantity 
of  water  which  found  its  way  over  the  weir  or  fletcher,  which  he 
then  consented  should  be  erected  by  the  defendants.  And  we  think, 
after  he  has  once  clearly  signified  such  relinquishment,  whether  by 
words  or  acts,  and  suffered  other  persons  to  act  upon  the  faith  of 
such  relinquishment,  and  to  incur  expense  in  doing  the  very  act  to 
which  his  consent  was  given,  it  is  too  late  then  to  retract  such  con- 
sent.  or  to  throw  on  those  other  persons  the  burthen  of  restoring 
matters  to  their  former  state  and  condition. 

Water  flowing  in  a  stream^it  is  well  settled,  by  the  law  of  England, 
j^ublici  juris.  By  the  Roman  law,  running  water,  light,  and  air,  were 
considered  as  some  of  those  things  which  had  the  name  of  res  com- 
munes and  which  were  defined  "things,  the  property  of  which  belong  to 
no  person,  but  the  use  to  all."  And,  by  the  law  of  England,  the  person 
who  first  appropriates  any  part  of  the  water  flowing  through  his  land 
to  his  own  use,  has  the  right  to  the  use  of  so  much  as  he  thus  appro- 
priates, against  any  other.  Bealy  v.  Shaw  and  Others,  6  East,  207,. 
And  it  seems  consistent  with  the  same  principle,  that  the  water,  after 
it  has  been  so  made  subservient  to  private  uses  by  appropriation,  should 
again  become  publici  juris  by  the  mere  act  of  relinquishment.  There^ 
is  nothing  unreasonable  in  holding  that  a  right  which  is  gained  bg^ 
^c£upancy  should  be  lost  by  abandonment.  Suppose  a  person,  who 
formerly  had  a  mill  upon  a  stream,  should  pull  it  down,  and  remove 
the  works,  with  the  intention  never  to  return.  Could  it  be  held,  that 
the  owner  of  other  land  adjoining  the  stream,  might  not  erect  a  mill 
and  employ  the  water  so  relinquished  ?  Or  that  he  could  be  compella- 
ble to  pull  down  his  mill,  if  the  former  mill-owner  should  afterwards 
change  his  determination,  and  wish  to  rebuild  his  own? 

In  such  a  case  it  would  undoubtedly  be  a  subject  of  inquiry  by  a  jury, 
whether  he  had  completely  abandoned  the  use  of  the  stream,  or  had  left 
it  for  a  temporary  purpose  only ;  but  that  question  being  once  deter- 
mined, there  seems  no  ground  to  contend  that  an  action  would  be 
maintainable  against  the  person  who  erected  the  new  mill,  for  not  pull- 
ing it  down  again  after  notice.  And  if,  instead  of  his  intention  re- 
maining uncertain  upon  the  acts  which  he  had  done,  the  former  pro- 


308  RIGHTS   IN   THE   LAND  OF   ANOTHER  (Part  2 

orietor  had  openly  and  expressly  declared  his  intention  to  abandon  the 
stream, — that  is,  if  he  had  licensed  the  other  party  to  erect  a  mill, — 
the  same  inference  must  follow  with  greater  certainty.  Or  suppose 
A.  authorizes  B.,  by  express  license,  to  build  a  house  on  B.'s  own  land, 
close  adjoining  to  some  of  the  windows  of  A.'s  house,  so  as  to  inter- 
cept part  of  the  light;  could  he  afterwards  compel  B.  to  pull  the  house 
down  again,  simply  by  giving  notice  that  he  countermanded  the  li- 
cense? Still  further,  this  is  not  a  license  to  do  acts  which  consist  iri^ 
repetition,  as  to  walk  in  a  park,  to  use  a  carriage  way,  to  fish  in  the 
waters  of  another,  or  the  like:  which  license,  if  countermanded,  the 
party  is  but  in  the  same  situation  as  he  was  before  it  was  granted; 
but  this  is  a  license  to  construct  a  work,  which  is  attended  with  ex- 
pense to  the  party  using  the  license ;  so  that,  after  the  same  is  counter- 
m.anded,  the  party  to  whom  it  was  granted  may  sustain  a  heavy  loss. 
It  is  a  license  to  do  something  that,  in  its  own  nature,  seems  intended  to 
be  permanent  and  continuing.  And  it  was  the  fault  of  the  party 
himself,  if  he  meant  to  reserve  the  power  of  revoking  such  a  license, 
after  it  was  carried  into  effect,  that  he  did  not  expressly  reserve  that 
right  when  he  granted  the  license,  or  limit  it  as  to  duration.  Indeed 
the  person  who  authorizes  the  weir  to  be  erected  becomes,  in  some 
sense,  a  party  to  the  actual  erection  of  it ;  and  cannot  afterwards  com- 
plain of  the  result  of  an  act  which  he  himself  contributed  to  effect. 

Upon  principle,  therefore,  we  think  the  license  in  the  present  case, 
after  it  was  executed,  was  not  countermandable  by  the  person  who  gave 
it,  and  consequently  that  the  present  action  cannot  be  maintained. 
And,  upon  authority,  this  case  appears  to  be  already  decided  by  that  of 
Winter  v.  Brock  well,  which  rests  on  the  judgment  in  Webb  v.  Pater- 
noster. We  see  no  reason  to  doubt  the  authority  of  that  case,  confirm- 
ed, as  it  since  has  been,  by  the  case  of  Tayler  v.  Waters  in  this  Court, 
and  recognized  as  law  in  the  judgment  of  Mr.  Justice  Bayley,  in  the 
case  of  Hewlins  v.  Shippam,  in  the  Court  of  B.  R.  - 

We  therefore  think  the  rule  for  setting  aside  the  award  of  the  arbi- 
trator must  be  made  absolute. 

Rule  absolute.* 

5  "A  license  to  a  person  to  do  or  erect  something  on  his  own  land,  by  which 
a  right  or  easement  of  the  licensor  may  be  affected,  if  once  executed  cannot 
be  revoked.  3  Kent,  472 ;  Angell  on  Water  Courses,  §§  296,  308 ;  Washb.  on 
Easements,  5o9,  §  1 ;  Liggins  v.  Inge,  7  Bing.  682  [1831] ;  Winter  v.  Brockwell, 
8  East,  308  [1807] ;  Dyer  v.  Sanford,  9  Mete.  395  [43  Am.  Dec.  399  (1845)] ; 
Morse  v.  Copeland,  2  Gray,  302  [1854]. 

"This  effect  given  to  a  license  by  parol  or  by  writing  without  seal,  seem- 
ingly contrary  to  the  principle  of  law  that  a  right  to  an  easement  can  arise 
or  pass  by  deed  only,  is  said  by  some  to  be  founded  on  the  doctrine  of 
.abandonment.  It  is  settled,  that  an  easement  or  right  in  the  estate  of  anoth- 
'er,  acquired  by  grant  or  prescription,  may  be  lost  by  actual  abandonment, 
that  is,  by  a  non-user  for  twenty  years,  or  even  for  less  time,  accompanied 
by  acts  which  show  an  intention  not  to  resume  it.  And  it  is  said  that  the 
effect  of  a  license  to  do  an  act  on  the  land  of  the  licensee,  can  only  extin- 
guish such  easement  as  may  be  abandoned,  that  is,  easements  or  rights  ac- 
quired by  grant  or  prescription,  and  does  in  no  case  affect  easements  or  In- 


Ch.  3)  LICENSES  309 

WOOD  V.  LEADBITTER. 

(Court  of  Exchequer,  1845.     13  Mees.  &  W.  838.) 

AldErson,  B.®  This  was  an  action  tried  before  my  Brother  Rolfe 
at  the  sittings  after  last  Trinity  Temi.  It  was  an  action  for  an  assault 
and  false  imprisonment.  The  plea  (on  which  alone  any  question  arose) 
was,  that  at  the  time  of  the  alleged  trespass  the  plaintiff  was  in  a  cer- 
tain close  of  Lord  Eglintoun,  and  the  defendant,  as  the  servant  of 
Lord  Eglintoun,  and  by  his  command,  laid  his  hands  upon  the  plaintiff 
in  order  to  remove  him  from  the  said  close,  using  no  unnecessary  vio- 
lence. Replication,  that,  at  the  time  of  such  removal,  the  plaintiff  was 
in  the  said  close  by  the  leave  and  license  of  Lord  Eglintoun.  The  leave 
and  license  was  traversed  by  the  defendant,  and  issue  was  joined  on 
that  traverse.  On  the  trial  it  appeared  that  the  place  from  which  the 
plaintiff  was  removed  by  the  defendant  was  the  enclosure  attached  to 
and  surrounding  the  great  stand  on  the  Doncaster  race-course ;  that 
Lord  Eglintoun  was  steward  of  the  races  there  in  the  year  1843 ;  that 
tickets  were  sold  in  the  town  of  Doncaster  at  one  guinea  each,  which 
were  understood  to  entitle  the  holders  to  come  into  the  stand,  and  the 
enclosure  surrounding  it,  and  to  remain  there  ever}'^  day  during  the 
races.  These  tickets  were  not  signed  by  Lord  Eglintoun,  but  it  must 
'be  assumed  that  they  were  issued  with  his  privity.  It  further  appeared, 
that  tjie  plaintiff,  having  purchased  one  of  these  tickets^  came  to  the 
stand  during  the  races  of  the  year  1843,  and  was  there  or  in  the  en- 
closure while  the  races  were  going  on,  and  while  there,  and  during  the 
races,  the  defendant,  by  the  order  of  Lord  Eglintoun,  desired  him^to 
^epartj  and  gave  him  notice  that  if  he  did  not  go  away,  force  would 
be  used  to  turn  him  out.  It  must  be  assumed  that  the  plaintiff  had 
in  no  respect  misconducted  himself,  and  that,  if  he  had  not  been  re- 

corporeiil  hereditaments,  ^vhich  are,  by  law,  annexed  to  the  land  of  the  li- 
censor. Angcll  on  Water  Course?,  §  303 :  Fentiraan  v.  Smith,  4  East,  107  [18031. 
Of  this  kind,  is  the  right  to  rvmning  water  passing  over  or  along  his  land 
in  a  natural  stream  or  water  course.  It  is  creating  an  easement  in,  or  part- 
ing with  a  riaht  annexed  by  law,  not  giving  up  or  abandoning  a  right  ac- 
quired by  grant  or  prescription.  I  am  much  inclined  to  think  that  the 
last  is  the  correct  doctrine."  Zabriskie,  Chancellor,  in  Veghte  v.  Raritan  Wa- 
tor  I'ower  Co.,  19  N.  J.  Eq.  142.  153  (186S).  Sec  Addison  v.  Hack,  2  Gill 
(Md.'i  221,  41  Am.  Dec.  421    (1844). 

A.  was  a  riparian  proprietor.  He  verbally  authorized  an  incorporated 
village  to  discharge  its  drainage,  by  a  drainage  system,  into  the  creek  above 
his  land  in  a  way  that  without  such  consent  would  attiount  to  a  nuisance. 
The  villaire,  in  reliance  upon  this  permission,  expended  money  in  the  prepa- 
ration of  plans,  and  incurred  other  liabilities,  and  the  contractors  had 
started  upon  the  building  of  the  sewer.  A.  then  revoked  his  license  and 
sought  to  enjoin  the  village  from  so  discharging  its  sewerage.  Held,  he  Is 
entitled  to  his  inlunction.  Village  of  Dwight  v.  Hayes,  150  111.  273,  37  N.  E. 
218,  41  Am.  St.  Ilep.  3G7  (1894). 

See  Panama  Realty  Co.  v.  City  of  New  York,  158  App.  Div.  726,  143  N.  Y. 
Supp.  893  (1913). 

8  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


310  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2" 

quired  to  depart,  his  coming  upon  and  remaining  in  the  enclosure  would 
have  been  an  act  justified  by  his  purchase  of  the  ticket.  The  plaintiff 
refused  to  go,  and  thereupon  the  defendant,  by  order  of  Lord  Eglin- 
toun,  forced  him  out,  without  returning  the  guinea,  using  no  unneces- 
sary violence. 

My  Brother  Rolfe,  in  directing  the  jury,  told  them,  that,  even  as- 
suming the  ticket  to  have  been  sold  to  the  plaintiff  under  the  sanction 
of  Lord  Eglintoun,  still  it  was  lawful  for  Lord  Eglintoun,  without 
returning  the  guinea,  and  without  assigning  any  reason  for  what  he 
did,  to  order  the  plaintiff  to  quit  the  enclosure,  and  that,  if  the  jury 
were  satisfied  that  notice  was  given  by  Lord  Eglintoun  to  the  plaintiff, 
requiring  him  to  quit  the  ground,  and  that,  before  he  was  forcibly 
removed  by  the  defendant,  a  reasonable  time  had  elapsed,  during  which 
he  might  conveniently  have  gone  away,  then  the  plaintiff  was  not,  at 
the  time  of  the  removal,  on  the  place  in  question  by  the  leave  and  li- 
cense of  Lord  Eglintoun.  On  this  direction  the  jury  found  a  verdict 
for  the  defendant.  In  last  Michaelmas  Term,  Mr.  Jervis  obtained  a 
rule  nisi  to  set  aside  the  verdict  for  misdirection,  on  the  ground,  that, 
under  the  circumstances.  Lord  Eglintoun  must  be  taken  to  have  given 
the  plaintiff  leave  to  have  come  into  and  remain  in  the  enclosure  during 
the  races ;  that  such  leave  was  -not  revocable,  at  all  events  without  re- 
turning the  guinea ;  and  so  that,  at  the  time  of  the  removal,  the  plam- 
tiff  was  in  the  enclosure  by  the  leave  and  license  of  Lord  Eglintoun. 
Cause  was  shown  during  last  term,  and  the  question  was  argued  before 
my  Brothers  Parke,  and  Rolfe  and  myself ;  and  on  account  of  the  con- 
flicting authorities  cited  in  the  argument,  we  took  time  to  consider  our 
judgment,  which  we  are  now  prepared  to  deliver. 

That  no  incorporeal  inheritance  affecting  land  can  either  be  created 
or  transferred  otherwise  than  by  deed,  is  a  proposition  so  well  estab- 
lished, that  it  would  be  mere  pedantry  to  cite  authorities  in  its  support. 
All  such  inheritances  are  said  emphatically  to  lie  in  grant,  and  not  in 
livery,  and  to  pass  by  mere  delivering  of  the  deed.  In  all  the  authorities 
and  text-books  on  the  subject,  a  deed  is  always  stated  or  assumed  to 
be  indispensably  requisite. 

And  although  the  older  authorities  speak  of  incorporeal  inheritances, 
yet  there  is  no  doubt  but  that  the  principle  does  not  depend  on  the 
quality  of  interest  granted  or  transferred,  but  on  the  nature  of  the 
.subject-matter:  a  right  of  common,  for  instance,  which  is  a  profit 
a  prendre,  or  a  right  of  way,  which  is  an  easement,  or  right  in  nature 
of  an  easement,  can  no  more  be  granted  or  conveyed  for  life  or  for 
years  without  a  deed,  than  in  fee  simple.  Now,  in  the  present  case, 
the  right  claimed  by  the  plaintiff  is  a  right,  during  a  portion  of  each 
day,  for  a  limited  number  of  days,  to  pass  into  and  through  and  to  re- 
main in  a  certain  close  belonging  to  Lord  Eglintoun ;  to  go  and  re- 
main where  if  he  went  and  remained,  he  would,  but  for  the  ticket,  be 
a  trespasser.  This  is  a  right  affecting  land  at  least  as  obviously  and 
extensively  as  a  right  of  way  over  the  land, — it  is  a  right  of  way  and 


Ch.  3)  LICENSES  311 

something  more :  and  if  we  had  to  decide  this  case  on  general  princi- 
ples only,  and  independently  of  authority,  it  would  appear  to  us  per- 
fectly clear  that  no  such  right  can  be  created  otherwise  than  by  deed. 
The  plaintiff,  however,  in  this  case  argues,  that  he  is  not  driven  to 
claim  the  right  in  question  strictly  as  grantee.  He  contends,  that,  with- 
out any  grant  from  Lord  Eglintoun,  he  had  license  from  him  to  be  in 
the  close  in  question  at  the  time  when  he  was  turned  out,  and  that 
such  license  was,  under  the  circumstances,  irrevocable.  And  for  this 
he  relies  mainly  on  four  cases,  which  he  considers  to  be  expressly  in 
point  for  him,  viz.  Webb  v.  Paternoster,  reported  in  five  different 
books,  namely.  Palmer,  71;  Roll.-  143  and  152;  Noy,  98;  Popham, 
151,  and  Godbolt,  282;  Wood  v.  Lake,  Sayer,  3;  Tayler  v.  Waters, 
7  Taunt.  374,  and  Wood  v.  Manley,  11  Ad.  &  E.  34;   3  Per.  &  D.  5. 

As  the  argument  of  the  plaintiff  rested  almost  entirely  on  the  au- 
thority of  these  four,  cases,  it  is  very  important  to  look  to  them  minute- 
ly, in  order  to  see  the  exact  points  which  they  severally  decided. 

Before,  however,  we  proceed  to  this  investigation,  it  may  be  con- 
venient to  consider  the  nature  of  a  license,  and  what  are  its  legal 
incidents.  And,  for  this  purpose,  we  cannot  do  better  than  refer  to 
Lord  C.  J.  Vaughan's  elaborate  judgment  in  the  case  of  Thomas  v. 
Sorrell,  as  it  appears  in  his  Reports.  The  question  there  was  as  to 
the  right  of  the  Crown  to  dispense  with  certain  statutes  regulating  the 
sale  of  wine,  and  to  license  the  Vintners'  Company  to  do  certain  acts 
notwithstanding  those  statutes. 

In  the  course  of  his  judgment  the  Chief  Justice  says,  Vaughan,  351, 
"A  dispensation  or  license  properly  passeth  no  interest,  nor  alters  or 
transfers  property  in  any  thing,  but  only  makes  an  action  lawful,  which 
without  it  had  been  unlawful.  As  a  license  to  go  beyond  the  seas,  to 
hunt  in  a  man's  park,  to  come  into  his  house,  are  only  actions  which, 
without  license  had  been  unlawful.  But  a  license  to  hunt  in  a  man's 
park,  and  carry  away  the  deer  killed  to  his  own  use;  to  cut  down  a 
tree  in  a  man's  ground,  and  to  carry  it  away  the  next  day  after  to 
his  own  use,  are  licenses  as  to  the  acts  of  hunting  and  cutting  down 
the  tree,  but  as  to  the  carrying  away  of  the  deer  killed  and  tree  cut 
down,  they  are  grants.  So,  to  license  a  man  to  eat  my  meat,  or  to 
fire  the  wood  in  my  chimney  to  warm  him  by,  as  to  the  actions  of  eat- 
ing, firing  my  wood,  and  warming  him,  they  are  licenses ;  but  it  is 
consequent  necessarily  to  those  actions  that  my  property  may  be  de- 
stroyed in  the  meat  eaten,  and  in  the  wood  burnt.  So  as  in  some  cases, 
b.y  consequent  and  not  directly,  and  as  its  effect,  a  dispensation  or  li- 
cense may  destroy  and  alter  property." 

Now,  attending  to  this  passage,  in  conjunction  with  the  title  "Li- 

•  cense"  in  Brooke's  Abridgment,   from  which,  and  particularly  from 

paragraph  15,  it  appears  that  a  license  is  in  its  nature  revocable,  we 

have  before  us  the  whole  principle  of  the  law  on  this  subject.    A  rnere 

license  is  revocable :     but  that  which  is  called  a  license  is  often  some- 


thing more  than  a  license;   it  often  comprises  or  is  connected  with  a 


312  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

grant,  and  then  the  party  who  has  given  it  cannot  in  general  revoke  it, 
so  as  to  defeat  his  grant,  to  which  it  was  incident. 

It  may  further  be  observed,  that  a  license  under  seal  (provided  it  be 
a  mere  license)  is  as  revocable  as  a  license  by  parol  ;^  and,  on  the  other 
hand,  a  license  by  parol,  coupled  with  a  grant,  is  as  irrevocable  as  a 
license  by  deed,  provided  only  that  the  grant  is  of  a  nature  capable  of 
being  made  by  parol.  But  where  there  is  a  license  by  parol,  coupled 
with  a  parol  grant,  or  pretended  grant,  of  something  which'  is  incapable 
of  being  granted  otherwise  than  by  deed,  there  the  license  is  a  mere 
license ;  it  is  not  an  incident  to  a  valid  grant,  and  it  is  therefore  rev- 
ocable. Thus,  a  license  by  A.  to  hunt  in  his  park,  whether  given  by 
deed  or  by  parol,  is  revocable ;  it  merely  renders  the  act  of  hunting 
lawful,  which,  without  the  license,  would  have  been  unlawful.  If  the 
license  be,  as  put  by  Chief  Justice  Vaughan,  a  license  not  only  to  hunt, 
but  also  to  take  away  the  deer  when  killed  to  his  own  use,  this  is  in 
truth  a  grant  of  the  deer,  with  a  license  annexed  to  come  on  the  land : 
and  supposing  the  grant  of  the  deer  to  be  good,  then  the  license  would 
be  irrevocable  by  the  party  who  had  given  it ;  he  would  be  estopped 
from  defeating  his  own  grant,  or  act  in  the  nature  of  a  grant.  But  -sup- 
pose the  case  of  a  parol  license  to  come  on  my  lands,  and  there  to  make 
a  watercourse,  to  flow  on  the  land  of  the  licensee.  In  such  a  case  there 
is  no  valid  grant  of  the  watercourse,  and  the  license  remains  a  mere 
license,  and  therefore  capable  of  being  revoked.  On  the  other  hand, 
if  such  a  license  were  granted  by  deed,  then  the  question  would  be  on 
the  construction  of  the  deed,  whether  it  amounted  to  a  grant  of  the 
watercourse ;  and  if  it  did,  then  the  license  would  be  irrevocable.  [The 
court  discussed  Webb  v.  Paternoster,  Palmer,  71,  Rolle,  143,  152, 
Wood  V,  Lake,  Sayer,  3,  Tayler  v.  Waters,  7  Taunt,  374,  and  Wood 
V.  Manley,  11  Ad.  &  E.  34.] 

It  was  suggested  that,  in  the  present  case,  a  distinction  might  exist, 
by  reason  of  the  plaintiff's  having  paid  a^valuable  considei:ati£n_fo 
the  privilege  of  going  on  the  stand.  But  this  fact  makes  no  difference : 
whether  it  may  give  the  plaintiff  a  right  of  action  against  those  from 
whom  he  purchased  the  ticket,  or  those  who  authorized  its  being  is- 
sued and  sold  to  him,  is  a  point  not  necessary  to  be  discussed;  any 
such  action  would  be  founded  on  a  breach  of  contract,*  and  would 
not  be  the  result  of  his  having  acquired  by  the  ticket  a  right  of  going 
upon  the  stand,  in  spite  of  the  owner  of  the  soil ;  and  it  is  sufficient, 
on  this  point  to  say,  that  in  several  of  the  cases  we  have  cited,  (Hewlins 
V.  Shippam,  for  instance,  and  Bryan  v.  Whistler,)  the  alleged  license 
had  been  granted  for  a  valuable  consideration,  but  that  was  not  held  to 
rriake  any  difference.  We  do  not  advert  to  the  cases  of  Winter  v. 
Brockwell,  8  East,  308,  and  Liggins  v.  Inge,  7  Bing.  682,  or  other  cases 

TAcc:  Fish  V.  Capwell,  18  R.  I.  6G7,  29  Atl.  840,  25  L.  R.  A.  159,  49  Am. 
St.  Rep.  807   (1894). 

sAcc:  Kerrison  v.  Smith,  [1897]  2  Q.  B.  445.  See  Elswick  v.  Kamey,  157 
Ky.  639,  163  S.  W.  751  (1914). 


Ch.  3)  LICENSES  313 

ranging  themselves  in  the  same  category,  as  they  were  decided  on 
grounds  inapplicable  to  the  case  now  before  us,  and  were,  in  fact,  ad- 
mitted not  to  bear  upon  it.     *     *     * 

We  have  come  to  tlie  conclusion,  that  the  direction  given  to  the 
jury  at  the  trial  was  correct,  and  that  this  rule  must  be  discharged. 

Rule  discharged.®  'tL'^~-j    v?oc. 


^ 


DRAKE  V.  WELLS.     SAME  v.  WYMAN.     SAME  v.  HEWINS. 
(Supreme   Judicial   Court   of   Massachusetts,    1865.     11   Allen,    141.) 

Tiiree  actions  of  tort  in  the  nature  of  trespass  quare  clausum. 

At  the  trial  in  the  superior  court,  before  Rockwell,  J.,  the  following 
facts  appeared :  In  November,  1863,  Manley  Drake  put  up  and  sold 
at  auction  the  stajiding  wood  on  the  close  described,  in  several  par- 
cels,  and  the  defendants  each  became  tlie  purchaser  of  one  or  more  of 
said  parcels ;  and  at  the  auction  the  auctioneer  stated  publicly,  and  as 
one  of  the  terms  of  sale,  that  the  purchasers  might  have  until  the  mid- 
dle of  the  following  June  to  cut  and  remove  the  wood  from  the  land. 

At  the  same  auction,  and  after  the  sale  of  the  wood  had  been  com- 
pleted, the  land  was  put  up  by  the  same  auctioneer  for  sale^  in  two  lots ; 
and  the  plaintiff,  through  an  agent  who  was  present  at  the  sale  of 
both  wood  and  land,  and  heard  the  terms  of  sale  stated  by  the  auc- 
tioneer, bid  off  and  became  the  purchaser  of  one  of  the  lots,  and  Azel 
Drake  purchased  the  other.  Subsequently  in  the  same  month  deeds  of 
the  lots  were  executed  by  Manley  Drake  to  Emma  R.  Drake  and  Azel 
Drake;  and  on  the  12th  day  of  February,  1864,  Azel  Drake  sold  and 
conveyed  by  deed  the  lot  purchased  by  him  to  the  plaintiff'.  All  the 
deeds  above  mentioned  were  entered  for  record  on  the  14th  of  June, 
1864;  but  it  was  not  contended,  at  the  argument  in  this  court,  that  the 
defendants  were  ignorant  of  the  sale  of  the  land  by  Manley  Drake,  and 
the  execution  of  the  deeds  thereof,  at  the  time  when  tlie  trees  were  cut. 

oAcc:  Wtere  the  ticket  holder  had  not  taken  the  seat  to  which  the  ticket 
entitled  him.  McCrea  v.  Marsh,  12  Gray  (Mass.)  211,  71  Am.  Dec.  745  (185S) ; 
Burton  v.  Scherpf,  1  Allen  (Mass.)  13.3,  79  Am.  Dec.  717  (1861) ;  Horney  v. 
Nixon,  213  Pa.  20,  61  Atl.  1088,  1  L.  R.  A.  (N.  S.)  1184,  110  Am.  St.  Kep. 
520,  5  Ann.  Cas.  349  (1905),  distinguishing  Drew  v.  Peer,  93  Pa.  234  (1880). 

Contra:  Tayler  v.  Waters,  7  Taunt.  c^74  (1817).  Contra,  where  the  ticket 
holder  had  taken  the  seat  to  which  his  ticket  entitled  him:  Ferguson  v. 
Chase,  28  Wash.  L.  Rep.  797  (1900).  Contra,  by  statute:  Greenberg  v. 
Western  Turf  Ass'n,  140  Cal.  357,  73  Pac.  1050  (1903);  Cremore  v.  Huber,  18 
App.  Div.  231,  45  N.  Y.  Supp.  947  (1897). 

A.  was  the  lessee  of  a  theater.  He  made  a  contract  with  B.  whereby  A. 
"let"  and  B.  "took  *  *  *  the  exclusive  right  to  sell  refreshments  at  the 
*  *  *  "  theater,  for  the  term  of  A.'s  lease,  "with  the  necessary  use  of 
the  refreshment  rooms,  bar,  cloak  rooms,  and  wine  cellars  *  *  *  and  the 
free  and  exclusive  right  of  supplying  visitors  and  other  people  wines,  spirits, 
cigars,"  etc.  B.  was  to  pay  a  weekly  "rental"  of  £35.  Held,  B.  has  no  in- 
terest that  entitles  him  to  compensation  in  condemnation  proceedings  to 
take  over  the  land  and  theater  building.  Warr  v.  London  County  Council, 
[1904]  1  K.  B.  713.  See,  also,  White  v.  Maynard,  111  Mass.  250,  15  Am, 
Rep.  28    (1872). 


314  RIGHTS   IX   THE   LAND   OF   ANOTHER  (Part  2 

The  deeds  from  Manley  Drake  to  the  plaintiff  and  Azel  Drake,  and 
the  deed  from  said  Azel  to  the  plaintiff,  were  vvarranty  deeds,  contain- 
ing no  reservation  of  standing  wood,  or  of  any  right  to  enter  upon 
the  land  to  cut  or  remove  the  same ;  and  all  the  acts  of  trespass  com- 
plained of  consisted  in  cutting  and  carrying  away  the  wood  sold,  and 
were  committed  by  the  several  defendants  prior  to  the  15th  of  June, 
1864. 

Upon  these  facts,  the  judge  instructed  the  jury  that  the  plaintiff  was 
not  entitled  to  recover  in  either  of  said  actions,  and  verdicts  were  ac- 
cordingly rendered  for  the  defendants.  .The  plaintiff  alleged  excep- 
tions. 

BiGELOW,  C.  J.  The  doctrine  is  now^  well  settled  that  a  sale  of  tim- 
ber or  other  product  of  the  soil,  which  is  to  be  severed  from  the  free- 
hold by  the  vendee  under  a  special  license  to  enter  on  the  land  for  that 
purpose  is,  in  contemplation  of  the  parties,  a  sale  of  chattels  only,  and 
cannot  be  regarded  as  passing  an  interest  in  the  land,  and  is  not  for 
that  reason  required  to  be  in  writing  as  being  within  the  statute  of 
frauds.  Such  license  to  enter  on  the  land  of  another,  so  far  as  it  is  ex- 
ecuted, js  irrevocable;  because,  by  the  severance  of  the  timber  or 
other  growth  of  the  soil  from  the  freehold,  in  execution  of  the  license, 
it  becomes  personal  property,  the  title  to  which  is  vested  in  the  ven- 
dee absolutely,  and  the  rule  applies  that  where  chattels  belonging  to 
one  person  are  placed  or  left  on  the  land  of  another,  with  the  permis- 
sion or  assent  of  the  latter,  the  owner  of  the  chcLttels  has  an  implied 
irrevocable  license  to  enter  and  remove  them.^*^  In  such  case  the  owner 
of  "land  cannot,  by  withdrawing  his  assent  to  enter  on  his  premises, 
deprive  the  owner  of  chattels  of  his  property,  or  prevent  him  from  re- 
gaining possession  of  them.  The_law  will  not  lend  its  aid  to  the^per- 
petration  of_a  fraud.  But  it  is  otherwise  where  the  contract  has  not 
been  executed  by  a  severance  of  the  subject  matter  of  a  contract  of 
sale  from  the  freehold.  So  long  as  the  timber  or  other  product  of  the 
soil  continues  in  its  natural  condition,  and  no  act  is  done  by  the  ven- 
dee towards  its  separation  from  the  soil,  no  property  or  title  passes  to 
the  vendee.  The  whole  rests  in  contract.  A  revocation  of  the  license 
to  enter  on  the  land  does  not  defeat  any  valid  title ;  it  does  not  deprive 
an  owner  of  chattels  of  his  property  in  or  possession  of  them.  The 
contract  being  still  executory,  no  tjtle_has  passed  to  the  vendee,  and  the 

lOAcc:  Wood  v.  Manley,  11  A.  &  E.  34  (1839);  Long  v.  JBucbanan,  27 
Md.  502,  92  Am.  Dec.  653  (18G7) ;  Sterling  v.  Warden,  51  N.  H.  217,  12  Am. 
Rep.  80  (1871) ;  Barnes  v.  Barnes.  6  Vt.  388   (1834). 

That  the  licensee  has  a  reasonable  time  after  the  revocation  of  the  li- 
cense within  which  to  remove  his  property,  see  Cornish  v.  Stubbs,  L.  R.  5 
C.  P.  334  (1870) ;  Parsons  v.  Camp,  11  Conn.  525  (1836) ;  Rogers  v.  Cox,  96 
Ind.  157,  49  Am.  Rep.  152  (1884);  Great  Falls  Waterworks  Co,  v.  Great 
Tv'orthern  Ry.  Co.,  21  Mont.  487,  54  Pac.  963  (1898) ;  Western  North  Carolina 
R.  Co.  v.  Deal,  90  N.  C.  110   (1884). 

If  the  licensee  does  not  remove  within  a  reasonable  time,  the  licensor  may 
do  so.  Hodgldns  v.  Farrington,  150  Mass.  19,  22  N.  E.  73,  5  L.  U.  A.  209, 
15  Am.  St.  Rep.  168   (1SS9). 


Ch.  3)  LICENSES  315 

refusal  of  the  vendor  to  permit  the  vendee  to  enter  on  the  land  for  the 
purpose  of  disconnecting  from  the  freehold  the  property  agreed  to  be 
sold  is  only  a  breach  of  contract,  the  remedy  for  which  is  an  action  for 
damages,  as  in  the  common  case  of  a  failure.Qr  .refusal  to  deliver  ordi- 
nary chattels  in  pursuance  of  a  contract  of  sale. 

These  principles  have  been  recognized  and  established  as  the  law 
of  this  commonwealth  in  several  adjudicated  cases.  In  Claflin  v.  Car- 
penter, 4  Mete.  .580,  582,  38  Am.  Dec.  381,  it  was  held  that  a  contract 
for  the  sale  of  standing  wood  to  be  cut  and  severed  from  the  freehold  > 
was  to  be  construed  "as  passing  an  interest  in  the  trees  when  they  are 
severed,"  and  that  a  licenseto  enter  on  the  land  under  such  contract 
could  not  be  countermanded  after  it  had  been  acted  on.  So  in  Nettle- 
ton  V.  Sikes,  8  Mete.  34,  it  was  said  by  the  court  that  a  beneficial  license 
to  be  exercised  on  land,  "when  acted  upon  under  a  valid  contract  can- 
not be  countermanded."  To  the  same  effect  are  Nelson  v.  Nelson,  6 
Gray,  385,  and  Douglas  v.  Shumway,  13  Gray,  498.  In  these  cases 
it  appeared  that  the  license  had  been  acted  on  by  the  vendee,  who  had 
entered  on  the  land  and  cut  the  timber  which  was  the  subject  of  the 
contract  of  sale,  and  had  thereby  acquired  a  title  to  the  wood  as  per- 
sonal property.  In  Giles  v,  Simonds,  15  Gray,  441,"  77  Am.  Dec.  373. 
a  case  was  presented  where  a  vendee  had  entered  on  land  under  a  con- 
tract of  sale  of  standing  wood,  and  had  cut  down  a  part  of  those  which 
was  agreed  to  be  sold,  when  he  was  forbidden  by  the  vendor,  the  owner 
of  the  land,  from  |)roceeding  any  further  in  the  execution  of  the  con- 
tract, and  also  from  removing  those  which  had  been  severed  from  the 
freehold.  He  nevertheless  did  go  on  the  land  and  take  away  such  of 
the  trees  as  had  been  previously  cut  down.  It  was  held  that  the  ven- 
dor had  a  right  to  terminate  the  contract  and  revoke  the  license  as  to 
the  trees  left  standing,  but  that  he  could  not  do  so  as  to  those  which 
had  been  already  cut,  and  that  an  action  of  trespass  would  not  lie  for 
entermg  and  taking  away  the  latter.  See  also  Burton  v.  Scherpf,  1 
Allen,  135,  79  Am.  Dec.  717. 

The  application  of  the  principles  established  by  these  cases  is  decisive 
of  the  rights  of  the  parties  to  these  actions.  Taking  the  most  favorable 
view  of  these  cases  in  behalf  of  the  defendants,  they  had_  acquired  no 
title  to  the  wood  standing  on  the  land  of  the  plaintiff.  They  had  only 
an_executory  contract  for  the  purchase  of  the  trees  growing  on  the 
premises,  with  a  license  from  the  plaintift''s  grantor  to  enter  and  cut 
and  remove  the  same.  This  license,  not  having  been  acted  on,  was 
revocable.  And  it  was  revoked  by  the  deed  of  the  land  to  the  plain- 
tiff by  the  licensor,  by  which  it  was  conveyed  absolutely  and  free  of 
all  incumbrances  to  the  plainti^  In  Cook  v.  Stearns,  11  Mass.  533; 
538,  it  was  held  that  the  transfer  of  land  to  another,  or  even  a  lease  of 
it,  without  any  reservation  would,  of  itself,  be  a  countermand  of  a  li- 
cense. Clearly  it  must  be  so,  because  an  j^mqualified  grant  of  land  car- 
xi£S_JAath  it  the  title  to  everything  which  is  part  of  the  realty  or  an- 
nexed  to  the  freehold^  and  is  inconsistent  with  a  right  in  any  other  per- 


^^^  RIGHTS   IN   THE   LAND   OF  ANOTHER  '        (Part  2 

son  than  the  grantee  to  enter  on  the  land  and  remove  therefrom  trees 
growing  thereon  or  other  products  of  the  soil.  Coleman  v.  Foster,  1 
Hurlst.  &  Norm.  37. 

It  follows  that  the  ruling  of  the  court  was  erroneous  at  die  trial  of 
this  cause.  The  defendants  were  trespassers,  and  were  liable  to  the 
plaintiff  for  entering  her  close  and  cutting  and  removing  wood  there- 
from. 

Exceptions  sustained.^^  /  ^^  y: 

FROGLEY  V.  EARL  OF  LOVELx\CE. 

(Court  of   Chancery,    1S59.     Johns.   Ch.   333.) 

By  an  indenture  of  lease,  dated  the  24th  of  February,  1844,  made 
between  the  defendant  of  the  one  part,  and  the  plaintiff  of  the  other 
part,  the  defendant  demised  to  the  plaintiff  two  farms,  in  the  county 
of  Surrey,  for  twenty-one  years,  from  Michaelmas,  1842,  at  the  rent 
therein  mentioned. 

iiAcc:  That  a  naere  license  is  personal,  and  is  consequently  terminated 
by  a  conveyance  of  the  land  with  respect  to  which  the  license  is  given.  Em- 
erson V.  Shores.  95  Me.  237,  49  Atl.  1051,  So  Am.  St.  Rep.  404  (1901) ;  Cook 
V.  Stearns,  11  Mass.  533  (1S14) ;  Ward  v.  Rapp,  79  Mich.  469,  44  N.  W.  934 
(1890) ;  Bridges  v.  Purcell,  IS  N.  G.  492  (1836). 

A.  owned  a  tract  of  land ;  B.  made  a  verbal  contract  with  A.  to  purchase 
the  timber  standing  thereon ;  before  B.  could  cut  the  tireber  A.  made  a  bind- 
ing contract  to  sell  the  land  to  C.  B.  had  no  notice  of  this  contract  and 
entered  and  cut  the  timber.  C.  had  no  notice  that  B.  claimed  any  interest  in 
the  timber  until  after  he  (C.)  took  possession  of  the  land.  C.  took  possession 
of  the  timber  so  cut.  Held,  B.  cannot  maintain  an  action  of  trover  against 
C.  for  the  timber  so  taken.  Bruley  v.  Garvin.  105  Wis.  625.  81  N.  W.  1038,  48  L. 
R.  A.  839  (1900).     See  White  v.  King,  87  Mich.  107,  49  N.  W.  518  (1891). 

A.  owned  a  piece  of  land  on  which  it  was  proposed  to  erect  a  building. 
By  written  contract  A.,  "the  licensor,"  gave  B.,  "the  licensee,"  exclusive  per- 
mission to  affix  advertisements  upon  the  walls  of  building  so  to  be  erectert 
for  a  period  of  four  years  from  the  erection  thereof.  B.  to  pay  therefor  a 
•Tent"  of  £12  per  annum.  The  licensor  agreed  that  he  would  not,  while 
the  license  remained  in  force,  permit  any  other  person  to  affix  advertisements. 
A.  then  leased  the  land  to  C.  by  indenture  for  40  years.  C.  covenanting  to 
erect  a  building.  C.  had  notice  of  the  contract  with  B.  C.  erected  the 
building  and  refused  to  allow  B.  to  affix  advertisements.  Held.  B.  has  an 
action  for  breacn  of  contract  against  A.  King  v.  Allen,  [1916]  2  A.  C.  54.  Com- 
pare Levy  V.  Louisville  Gunning  System,  121  Ky.  510,  89  S.  W.  528,  1  L.  R.  ^V. 
(N.  S.)  359  (1905) ;  Borough  Bill  Posting  Co.  v.  Levy,  144  App.  Div.  7S4,  129 
N.  Y.  Supp.  740  (1911). 

An  assignment  of  the  license  by  the  licensee  also  terminates  it,  Bates  v. 
Duncan.  64  Ark.  339,  42  S.  W.  410,  62  Am.  St.  Rep.  190  (1897):  Prince  v. 
Case,  10  Conn.  375.  27  Am.  Dec.  675  (1835) ;  Dark  v.  Johnston,  55  Pa.  164 
93  Am.  Dec.  732  (1867) ;  Nunnellv  v.  Southern  Iron  Co.,  94  Tenn.  397.  29 
S.  W.  361,  28  L.  R.  A.  421   (1894). 

As  to  the  rights  of  the  holder  of  a  license  "coupled  with  an  interest" 
against  a  grantee  of  the  land,  see  Jenkins  v.  Lykes,  19  Fla.  148,  45  Am.  Rep. 
19  (18S2) ;  Shipley  v.  Fink,  102  Md.  219,  62  Atl.  360,  2  L.  R.  A.  (N.  S.)  1002 
(1905). 

A  license  "coupled  with  an  interest"  Is  assignable.  Heflin  v.  Bingham,  .56 
Ala.  566.  28  Am.  Rep.  776  (1S76) ;  Ingalls  v.  St.  Paul.  M.  &  M.  Ry.  Co..  3<J 
Minn.  479.  40  N.  W.  524.  12  Am.  St.  Rep.  676  (18SS).  See  Ely  v.  Cavanaugli, 
S2  Conn.  6S1,  74  Atl.  1122  (1910). 


Ch.  3)  LICENSES  317 

Previously  to  the  execution  of  the  said  indenture  the  following  mem- 
orandum was  indorsed  thereon :  "It  is  hereby  agreed  that  the  said 
Ralph  Frogley,"  meaning  the  plaintiff,  "shall  have  the  exclusive  right 
of  sporting  over,  and  killing  the  game  upon,  the  lands  included  in  the 
within-written  lease,  and  also  upon  the  lands  adjacent  thereto  belonging 
to  the  said  earl,"  meaning  the  defendant  (describing  such  adjacent 
lands),  "during  the  continuance  of  the  said  term,  if  the  said  Ralph 
Frogley  shall  so  long  live ;  he  undertaking  to  keep  and  leave  a  fair 
stock  of  game  thereupon,  and  not  to  keep  such  an  excessive  quantity 
of  hares  and  rabbits  as  to  do  damage  to  the  said  earl  or  his  under-ten- 
ants in  the  neighbourhood." 

The  lease  was  executed  by  both  plaintiff  and  defendant;  but  the 
memorandum  was  executed  by  the. plaintiff  only. 

On  the  9th  of  February,  1859,  the  defendant  caused  a  notice  to  be 
served  on  the  plaintiff,  whereby,  after  reciting  the  memorandum  in- 
dorsed on  the  lease  of  February,  1844,  the  defendant  gave  the  plaintiff 
notice  that,  from  and  after  the  date  thereof,  he  revoked,  rescinded  and 
entirely  put  an  end  to  the  agreement  expressed  in  the  said  memoran- 
dum, and  each  and  every  right,  license,  liberty,  permission  or  authority 
thereby  given. 

The  bill  stated  these  facts,  and  further  stated,  as  the  fact  was,  that, 
between  the  9th  and  the  12th  of  February,  1859,  the  defendant  sent 
bodies  of  men  upon  the  property  comprised  in  the  said  indenture  to  de- 
stroy the  hares  and  rabbits  thereon,  thereby  disturbing  and  driving 
away  the  pheasants  and  game  which  the  plaintiff  had  been  preserving 
upon  the  property. 

The  bill  prayed  that  the  defendant  might  be  decreed  specifically  to 
perform  the  agreement  indorsed  on  the  lease  of  Februar}-,  1844;  and 
for  that  purpose  to  make  and  execute  to  the  plaintiff  a  proper  and  le- 
gal grant  of  the  exclusive  right  to  sporting  over,  and  killing  the  game 
upon,  the  lands  included  in  the  said  lease,  and  upon  the  lands  adjacent 
thereto,  in  accordance  with  the  terms  of  the  said  agreement :  and  that 
the  defendant,  his  agents,  &c.,  might  be  restrained  from  disturbing, 
driving  away  and  destroying,  or  in  any  manner  interfering  with,  the 
pheasants,  game,  hares  and  rabbits  in  and  upon  the  premises  comprised 
in  the  said  agreement,  during  the  term  of  years  granted  or  agreed  to 
be  granted  in  respect  of  the  said  premises,  if  the  plaintiff  should  so 
long  live.^-     *     *     * 

The  Vice-Chancellor^^  commenced  his  judgment  by  examining 
the  evidence  as  to  the  circumstances  under  which  the  memorandum  of 
agreement  was  indorsed  upon  the  lease  of  February',  1844,  and  as  to 
the  circumstances  attending  the  execution  of  that  indenture;  which 
led  the  Court  to  the  conclusion  that  the  agreement  expressed  in  the 
memorandum  so  indorsed  upon  the  deed  formed  an  essential  part  of 

12  The  starement  of  facts  is  abridged. 

13  Sir  W.  Page  Wood. 


318  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

the  consideration  upon  which  the  plaintiff  was  induced  to  take  the 
lease  of  the  property  comprised  in  the  indenture ;  and  that  the  mem- 
orandum, though  not  signed  by  the  defendant,  was  binding  upon  him. 
His  Honour  then  proceeded  as  follows: 

In  this  state  of  things,  if  the  whole  transaction  had  rested  upon  a 
deed,  if  the  agreement  expressed  in  the  memorandum  indorsed  upon  the 
lease  had  been  also  entered  into,  as  the  lease  itself  was  by  an  instrument 
under  seal,  I  should  have  felt  a  good  deal  of  difficulty  as  to  whether  I 
ought  not  to  leave  both  parties  to  their  rights  at  law.  But  that  is  not 
the  case.  The  memorandum  is  a  mere  Writing  not  under  seal,  and  the 
case  of  Wood  v.  Leadbitter,  13  Mee.  &  W.  838,  has  decided  that,  in 
order  to  acquire  a  right  such  as  that  which  is  here  claimed  by  the  plain- 
tiff, an  instrument  under  seal  is  necessary ;  and  that  at  law  an  instru- 
ment purporting  to  grant  such  a  right,  though  given  for  a  valuable 
consideration,  is  revocable  at  any  time  and  without  paying  back  the 
money.  At__law,  therefore,  the  plaintiff  has  no  remedy  until  the  de- 
fendant shall  Have  executed  a  deed  containing  a  proper  and  legal  grant 
of  the  exclusive  right  of  sporting  in  accordance  with  the  terms  of  the 
agreement. 

Then  I  observe  that  the  defendant  clairr^:*  to  kill  not  rabbits  only — 
as  to  which  it  seems  to  have  been  decided  by  the  very  recent  case  which 
was  cited  (Spicer  v.  Barnard,  1  El.  &  EI.  874)  that  they  may  be  killed 
by  the  tenant,  notwithstanding  an  express  reservation  to  the  landlord 
,of  the  exclusive  right  of  sporting — but  hares  also,  which  are  clearly 
game.  In  the  face  of  his  own  express  agreement  that  the  plaintiff  shall 
have  "the  exclusive  right  of  sporting  over,  and  killing  the  game  upon, 
the  lands"  in  question,  the  defendant  kills  the  hares  himself,  instead 
of  leaving  it  to  the  plaintiff  to  kill  them. 

Under  these  circumstances,  it  appears  to  me  that  the  plaintiff  is 
deajly„erititled  to.an  injunc^^^^  the  interval,  until  the  defendant 

shall  have  executed  a  proper  legal  grant  of  the  right  claimed  by  the 
plaintiff.  I  hope,  however,  that  such  a  grant  will  tie  shortly  executed, 
so  that  the  injunction  will  not  long  be  wanted.^* 


RERICK  V.  KERN. 

(Supreme  Court  of  Pennsylvania,  1826.     14  Serg.  &  R.  267,  16  Am.  Dec.  497.) 

On  the  return  of  a  writ  of  error  from  the  Common  Pleas  of  Union 
county,  it  appeared  from  the  record,  that  this  was  a  special. action  on 
the  case,  brought  by  Henry  Kern,  the  defendant  ir\  error,  against 
Henry  Rerick,  the  plaintiff  in  error,  for  diverting  a  water  course,  in 
consequence  of  which  lie_J^ost  the  use  of  .his  sawmill;  the  defendant 
pleaded  not  guilty. 

i*Ac'c.:  Devonshire  v,  Eglin,  14  Beav.  530  (1S51) ;  Hervey  v.  Smitn,  'I'Z 
Beav.  299  (1856). 


Ch.3)  LICENSES  ,  319 

The  material  facts,  proved  on  the  trial,  were,  that  some  years  before 
the  institution  of  the  suit,  Henry.  Kern,  the  plaintiff  below,  being  about 
to  erect  a  sawmill  on  a  stream  which  was  designated  by  the  witnesses 
as  the  right-hand  stream,  a  better  seat  for  the  mill  was  found  by  his 
millwright  on  what  was  termed  the  left-hand  stream.  Kern  thereupon 
applied  to  Rerick  for  permission  to  turn  the  water  into  the  left-hand 
stream,  which  was  granted;  in  consequence  of  this  permission,  he 
built  the  sawmill  upon  the  left-hand  stream.  Without  the  aid  of  the 
right-hand  stream,  the  water  of  the  left-hand  stream  would  have  been 
wholly  insufficient,  but  the  right-hand  stream  alone  would  have  served 
the  purposes  of  the  mill  three  or  four  months  during  the  year ;  by  a 
union  of  the  two  streams,  the  mill  was  rendered  about  a  third  more 
valuable  than  it  would  have  been,  with  the  right-hand  stream  alone. 
No  deed  was  executed,  nor  was  any  consideration  given,  but  Kern,  in 
consequence  of  the  permission  given  by  Rerick,  built  a  very  good  mill, 
which  did  a  great  deal  of  business,  and  which  he  would  not  have  built 
on  the  left-hand  stream,  if  the  permission  had  not  been  given.  When 
the  water  was  turned  away  by  Rerick,  the  mill  was  in  good  order,  and 
it  v/as  further  proved,  that,  at  the  time  the  trial  took  place,  there  was 
as  much  or  more  water  in  the  left-hand  stream,  than  there  had  been 
before  the  erection  of  the  sawmill. 

The  President  of  the  court  of  common  pleas  (Chapman)  charged  the 
jury  as  follows: 

"Two  questions  arise  in  this  cause ;  the  first  is,  whether  Henry 
Rerick,  after  permitting  and  agreeing  that  Heilry  Kern  should  turn 
the  water  from  the  right-hand  stream  to  the  left-hand  stream,  when, 
if  he  had  not  given  that  permission,  he  would  have  built  his  mill  upon 
the  right-hand  stream,  can  he,  Henry  Rerick,  afterwards  withdraw 
his  permission,  and  thereby  destroy  the  use  of  Kern's  sawmill.  His 
withdrawing  that  permission  after  the  mill  was  built,  by  removing  the 
stones  laid  for  the  purpose  of  turning  the  water,  if  the  jury  believe 
these  facts,  would  be  a  fraud  and  imposition  upon  Henry  Kern,  and  he 
would  have  no  right  to  remove  them;  but,  if  he  had  withdrawn  his 
permission,  and  removed  the  dam,  before  Henry  Kern  was  at  the  ex- 
pense of  building  a  mill,  he  would  have  been  justifiable  in  so  doing;  or, 
if  the  permission  was,  by  parol,  to  enjoy  a  right  which  could  only  pass 
by  grant,  for  a  consideration,  it  would  be  within  the  statute  of  frauds 
and  perjuries,  and  not  good  in  law.  But  if  the  jury  believe  the  act  was 
fraudulent  in  Henry  Rerick,  he  is  liable  to  pay  damages  to  Henry  Kern 
for  the  injury  done  him.  .Of  the  amount  of  damages  the  jury  are  the 
judges. 

"The  second  question,  if  the  jury  believe  that  no  fraud  has  been 
committed  by  Henry  151.e"rick,  is,  did  Rerick,  by  removing  the  dam,  di- 
vert the  water  from  the  left-hand  stream,  so  as  ip.kaye  less  water 
running  in  the  left-hand  stream  than  there  was  formerly  before  the 
dam  was  erected?  This  is  a  fact  for  the  jury,  and  if  the  jury  believe 
that  Rerick  has  diverted  the  water  from  the  ancient  channel,  which  he 


320  RIGHTS  IN  THE   LAND   OF   ANOTHER  (Part  2 

had  no  right  to  do,  to  the  injury  of  Kern,  and  that  Kern  has  suffered 
damage  thereby,  the  jury  are  to  deterrpine  to  what  amount  if  any  dam- 
age the  plaintiff  has  suffered." 

The  court  was  requested,  by  the  counsel  for  the  defendant,  to  in- 
struct the  jury  in  the  following  manner: 

"1.  That  if  Rerick,  about  the  year  1811,  did  allow  the  plaintiff,  as 
proved  by  William  Teats,  to  place  an  obstruction  in  the  natural  chan- 
nel of  one  branch  of  the  stream,  on  Rerick's  own  land,  yet  that  being 
without  any  consideration,  and  merely  by  parol,  no  legal  right  to  the 
stream,  or  the  use  thereof,  passed  thereby  to  Kern,  but  Rerick  had  a 
right,  at  any  time,  to  remove  the  said  obstruction,  so  that  the  water 
could  flow  at  any  time  in  its  natural  channel." 

Answer :  "In  answer  to  the  first  question :  He  would  have  a  right 
to  remove  the  said  obstructions,  before  Kern  had  incurred  the  ex- 
pense of  building  a  sawmill,  on  the  faith  of  Rerick's  promise,  or  he 
would  have  had  a  right,  if  the  permission  or  promise  had  been  after 
the  building  of  the  mill,  but  notj  after  he  had  induced  Kern  to  be  at 
the  expense  of  building  the  mill. 

"2.  That  an  action  for  diverting  an  ancient  water  course,  does  not, 
lie,  for  removing  an  artificial  obstruction  from  the  natural  channel, 
whereby  the  water  was  made  to  flow  as  it  used  to  do  from  time  im- 
memorial."  '  '  .:'jft. :  /.^  "^"^ 

Answer :  "That  is  the  general  principle  of  the  law  ;  but  to  this  there 
are  exceptions,  where,  by  so  doing,  the  party  commits  a  fraud^  and  an 
action  wall  lie." 

"3.  That  if  the  jury  believe  the  whole  evidence  exhibited  by  the 
plaintiff  in  this  cause,  Rerick  could,  legally,  in  the  fall  of  1821,  remove 
the  dam  placed  in  the  forks  of  the  stream,  by  Kern,  on  Rerick's  land, 
and  for  removing  the  same  no  action  lies,  whether  Kern  sustained 
thereby  loss  or  not." 

Answer:  "If  the  jury  believe  that  there  was  no  fraud  in  Rerick's 
removing  the  dam,  in  which  case  he  would  have  a  legal  right  to  do  it, 
no  action  would  lie." 

"4.  That  if  the  jury  believe  the  water,  ever  since  the  removal  of  the 
obstruction  at  the  forks,  has  run,  and  continues  to  run  in  its  natural 
channel,  as  it  used  to  do  from  time  immemorial,  their  verdict  should 
be  for  the  defendant." 

Answer:  "If  the  jury  so  believe,  and  that  no  fraud  was  committed 
by  removing  this  obstruction  or  dam',  then  your  verdict  should  be  for 
the  defendant." 

The  counsel  for  the  defendant  excepted  to  the  opinion  of  the  court, 
both  in  their  charge  to  the  jury,  and  in  their  answers  to  the  several 
propositions  submitted  to  them. 

The  opinion  of  the  Court  was  delivered  by 

Gibson,  J.  To  the  objection,  that  an  action  for  diverting  an  ancient 
water  course,  is  not  supported  by  evidence  of  the  removal  of  an  arti- 
ficial obstruction,  it  is  sufficient  to  answer,  that  in  the  case  before  us. 


Ch.  3)  LICENSES  321 

the  right  depends,  not  on  the  antiquity  of  the  water  course,  but  on  the 
agreement  of  the  parties ;  and  the  question,  therefore,  is,  would  equity 
carry  this  agreement  into  effect? 

That  such  an  agreement  may  be  proved  by  parol,  was  settled  in  Le 
Fevre  v.  Le  Fevre,  4  Serg.  &  R.  241,  8  Am.  Dec.  696,  which,  in  this  re- 
spect, goes  as  far  as  the  case  before  us.  The  defence  there  was,  that 
the  right,  being  incorporeal,  and  therefore,  lying  in  grant,  could  piss 
only  by  deed;  but,  as  the  agreement  was  for  a  privilege  to  lay  pipes, 
it  is  evident,  that  the  right  acquired  under  it  was  no  further  incorpo- 
real than  that  which  passes  by  the  grant  of  a  mine,  or  of  a  right  to 
build,  which  indisputably  vests  an  interest  in  the  soil.  A  right  of  way, 
which  has  been  thought  to  approach  it  more  nearly,  in  fact,  differs 
from  it  still  further.  But  the  defence  in  this  case  is  put  on  other 
ground,  it  being  contended,  that  a  mere  license  is  revocable,  under  all 
circumstances,  and  at  any  time. 

But  a  license  may  become  an  agreement  on  valuable  consideration; 
as,  whefe"the  enjoyment  of  it  must  necessarily  be  preceded  by  the  ex- 
penditure of  money;  and  when  the  grantee  has  made  improvements 
or  invested  capital  in  consequence  of  it,  he  has  become  a  purchaser  for 
a  valuable  consideration.  Such  a  grant  is  a  direct  encouragement  to 
expend  money,  and  it  would  be  against  all  conscience,  to  annul  it,  as 
soon  as  the  benefit  expected  from  the  expenditure  is  beginning  to  be 
perceived.  Why  should  not  such  an  agreement  be  decreed  in  specie? 
That  a  party  should  be  let  off  from  his  contract,  on  payment  of  a  com- 
pensation in  damages,  is  consistent  with  no  system  of  morals,  but  the 
common  law,  which  was,  in  this  respect,  originally  determined  by  polit- 
ical considerations,  the  policy  of  its  military  tenures  requiring  that  the 
services  to  be  rendered  by  the  tenant  to  his  feudal  superior,  should 
not  be  prevented  by  want  of  personal  independence.  Hence,  the  judg- 
ment of  a  court  of  law  operates  on  the  right  of  a  party,  and  the  decree 
of  a  court  of  equity  on  the  person.  But  the  reason  of  this  distinction 
has  long  ceased,  and  equity  will  execute  every  agreement,  for  the 
breach  of  which  damages  may  be  recovered,  where  an  action  for  dam- 
ages would  be  an  inadequate  remedy.  How  very  inadequate  it  would 
be  in  a  case  like  this,  is  perceived,  by  considering  that  a  license  which 
has  been  followed  by  the  expenditure  of  $10,000,  as  a  necessary 'quali- 
fication to  the  enjoyment  of  it,  may  be  revoked  by  an  obstinate  man 
who  is  not  worth  as  many  cerits.  But  besides  this  risk  of  insolvency, 
the  law,  in  barely  compensating  the  want  of  performance,  subjects  the 
injured  party  to  risk  from  the  ignorance  or  dishonesty  of  those  who 
are  to  estimate  the  quantum  of  the  compensation.  In  the  case  under 
consideration,  no  objection  to  a  specific, performance  can  be  founded 
on  the  intrinsic  nature  of  the  agreement,  nor,  having  been  partly  ex- 
ecuted, on  the  circumstances  of  its  resting  in  paro) ;  but  it  is  to  be  con- 
sidered as  if  there  had  been  a  formal  conveyance  of  the  right,  and 
nothing  remains  but  to  determine  its  duration  and  extent. 

BiG.RlGHTS — 21 


'322  RIGHTS  IN   THE   LAND   OF   ANOTHER  (Part  2 

A  right  under  a  license,  when  not  specially  restricted,  is  commen- 
surate with  the  thing  of  which  the  license  is  an  accessory.  Permission 
to  use  water  for  a  mill,  or  anything  else  that  was  viewed  by  the  parties 
as  a  permanent  erection,  will  be  of  unlimited  duration,  and  survive  the 
erection  itself,  if  it  should  be  destroyed  or  fall  into  a  state  of  dilapi- 
dation ;  in  which  case,  the  parties  might  perhaps  be  thought  to  be  re- 
mitted to  their  former  rights.  But  having  had  in  view  an  unlimited 
enjoyment  of  the  privilege,  the  grantee  has  purchased,  by  the  expendi- 
ture of  money,  a  right,  indefinite  in  point  of  duration,  which  cannot 
be  forfeited  by  non-user,  unless  for  a  period  sufficient  to  raise  the  pre- 
sumption of  a  release.  The  right  to  rebuild,  in  case  of  destruction  or 
dilapidation,  and  to  continue  the  business  on  its  original  footing,  may 
have  been  in  view  as  necessary  to  his  safety,  and  may  have  been  an 
inducement  to  the  particular  investment  in  the  first  instance.  The 
cost  of  rebuilding  a  furnace,  for  instance,  would  be  trivial,  when  weigh- 
ed with  the  loss  that  would  be  caused  by  breaking  up  the  business,  and 
turning  the  capital  into  other  channels ;  and  therefore,  a  license  to 
use  water  for  a  furnace  would  endure  for  ever.  But  it  is  otherwise, 
where  the  object  to  be  accomplished  is  temporary ;  such  usually  is  the 
object  to  be  accomplished  by  a  sawmill,  the  permanency  of  which  is 
dependent  on  a  variety  of  circumstances,  such  as  an  abundance  of  tim- 
ber, on  the  failure  of  which  the  business  necessarily  is  at-  an  end.  See " 
Hepburn  v.  McDowell,  17  Serg.  &  R.  383,  17  Am.  Dec.  677.  But,  till 
then,  it  constitutes  a  right  for  the  violation  of  which  redress  may  be 
had  by  action.  With  this  qualification,  it  may  safely  be  affirmed,  that 
expending  money  or  labor,  in  consequence  of  a  license  to  divert  a  wa- 
ter course  or  use 'si  water  power  in  a  particular  way,  has  the  effect  6T 
turning  such  license  into  aiiagreemehtlhat  will  be  executed  in  equity. 
Here,  it  was  not  pretended  that  the  license  had  expired,  and  we  are 
unable  to  discover  an  error  in  the  opinion  of  the  court,  on  the  points 
that  were  propounded.  ,        ^ 

Judgment  affirmed."     ^',      7^%^  (MJ.  -  f-\. 

15 Ace:  Stouer  v.  Zucker,  148  Cal.  516,  83  Pac.  808,  113  Am.  St.  Rep.  3U1, 
7  Ann.  Cas.  704  (1906) ;  Brantley  v.  Perry,  120  Ga.  760,  48  S.  E.  332  (1904) ; 
Ruthv.en  v.  Farmers'  Co-operative  Creamery  Co.,  140  Iowa.  570,  118  M.  VV. 
915  (1908),  (distinguishing  Jones  v.  Stover,  131  Iowa,  119,  108  N.  W.  112,  b 
L.  R.  A.  [N.  S.]  154  [1906] ;  Lee  v.  McLeod,  12  Nev.  280  (1877) ;  Risien  v. 
Brown,  73  Tex.  135,  10  S.  W.  661  (1889) ;  Clark  v.  Glidden,  60  Vt.  702,  15 
Atl.  358  (1887). 

See,  also,  Clianiberlin  v.  Myers  (Ind.  App.)  120  N.  E.  600  (1918). 

"But  it  is  argued  that  a  contract  may  be  implied  from  the  acts  of  the 
parties.  And  the  principle  sought  to  be  applied  at  this  point  of  the  argu- 
ment was  one  announced  bv  Gibson,  C.  J.,  in  the  Pennsylvania  cases  of 
Rerick  v.  Kern,  14  Serg.  &  R.  (Pa.)  267,  16  Am.  Dec.  497  (1826),  and  Swartz 
v.  Swartz,  4  Pa.  853,  45  Am.  Dec.  697  (1846),  that  the  grant  of  a  privilege 
which  is  accessory  to  a  permanent  business  is  presumed  to  be  commen- 
surate in  duration  with  the  business,  and  althou-^h  at  first  but  a  license  and 
as  such  revocable,  yet  that  when  acted  upon  in  the  expenditure  of  money  it 
becomes  a  contract  for  a  valuable  consideration,  to  be  executed  by  a  Court 
of  Equity  as  a  contract  part  performed,  it  will  be  observed,  that  this 
principle  must  depend,  for  its  application  to  any  particular  case,  upon  the 


Ch.  3)  LICENSES  323 

ST.  LOUIS  NATIONAL  STOCKYARDS  v.  WIGGINS. 
FERRY  CO. 

(Supreme  Court  of  Illinois,  1884.     112  111.  384,  54  Am.  Rep.  243.) 

Appeal  from  the  Appellate  Court  for  the  Fourth  District;  heard  in 
that  court  on  appeal  from  the  Circuit  Court  of  St.  Clair  county;  the 
Hon.  Amos  Watts,  Judge.,  presiding. 

The  bill  of  complaint  exhibited  in  this  case  by  the  St.  Louis  Na- 
tional Stockyards,  in  the  circuit  court  of  St.  Clair  county,  on  Febru- 
ary 10,  1882,  sets  out  that  the  complainant,  being  the_owner_of  United 
States  survey  No.  627,  containing  four  hundred  acres  of  land  adjacent 
to  East  St.  Louis,  upon  which  tract  its  slock  yards  were  situated,  was 
desirous  of  having  a  connectmg  railway  track  as  near  as  might  be  to 
the  East  St.  Louis  stations  of  divers  railroads;  that  tlie  Wiggins  Ferry 
Company,  being  the  owner  of  land  between  said  survey  627  and  said 
railroads,  on  or  about  May,  1875,  offered  to  give  complainant,  for  the 
purpose  of  a  right  of  way__fpr  said  contemplated  connecting  track,  a 
strip  of  land  sixty  feet  wide,  (part  of  said  ferry  company's  land,)  ex- 
tending  from  complamanrs"survey  627  to  the  main  track  of  the  Wa- 
bash railway,  on  the  condition  that  complainant  would  locate  and  con- 
struct  tlie  track  upon  the  ferry  company's  land  north  of  Stockyard  ave-^ 
nue,  an  improved  liigliway  leading  from  the  stock  yards  to  Front  street, 
on  the  Mississippi  river,  at  East  St.  Louis,  and  so  as  to  enable  the  ferry 
company  to  lay  out  the  land  between  Stockyard  avenue  and  the  pro- 
posed track,  into  lots,  of  sufficient  depth  for  manufacturing  purposes, 
and  to  permit  holders  of  lots  abutting  the  track  to  connect  therewith; 
that  complainant  accepted  the  proposal  so  made,  and  thereupon,  in 
pursuance  of  the  agreement,  laid  out  a  sixty  feet  right  of  way  upon  and 
across  the  ferry  company's  land,  in  July,  1875,  and  within  sixty  days 
thereafter,  with  the  knowledge  and  consent  of  such  company,  construct- 
ed_said_2rojected  connecting  track  on  said  right  of  way;  that  the  en- 
tire length  of  the  connecting  track  was  three  thousand  one  hundred  and 
fifty  feet,  permanently  built,  at  a  cost  to  complainant  of  $12,000, — one 

presumed  intent  of  the  parties  that  the  privilege  granted  in  such  case  should 
be  commensurate  with  the  business  to  which  it  might  be  accessory  as  a 
right  in  all  events,  and  not  as  an  arrangement  depending  upon  the  will  of 
the  parties  for  its  continuance.  Ordinarily,  such  a  presumption  may  be  a 
reasonable  one.  In  the  Pennsylvania  cases  it  was  clearly  so.  But  after 
all,  this  presumption,  or  to  speak  more  accurately,  this  inference  as  to  the 
intent  of  the  parties,  is  one  controlled  by  the  cii'cumstances  of  the  particular 
case  and  may  be  wholly  countervailed  by  evidence  demonstrative  that  the 
privilege  in  question  was  in  fact  granted  and  accepted  not  as  a  perpetual, 
indefeasible  right,  but  as  a  voluntary  accommodation,  to  abide  the  good 
will  and  mutual  interests  of  the  parties."  Jackson  »&  Shark  v.  Philadelphia, 
W.  &  B.  R.  R.  Co.,  4  Del.  Ch.  ISO,  187  (1871). 

A.  gave  B.  a  license  to  build  a  drain  through  his  land.  B.  did  so  at  a 
large  expense.  A.  later  broke  the  drain.  B.  recovered  as  damages  the 
cost  of  the  construction  of  the  drain.  B.  later  sought  to  enjoin  A.  from  in- 
terfering with  the  drain.  Held,  he  is  not  entitled  to  the  injunction.  Uster 
V.  Broe,  161  Ind.  113,  64  N.  E.  918  (1903). 


324  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

thousand  seven  hundred  and  fifty  feet  of  it  being  upon  this  right  of 
way,  the  other  one  thousand  four  hundred  feet  being  upon  complain- 
ant's survey  627,  and  including  a  permanent  bridge  built  across  Cahokia 
creek;  that  the  part  of  the  track  upon  survey  627  including  the  bridge, 
cost  $7,000  out  of  the  total  of  $12,000,  and  would  not  have  been  built, 
and  was  and  is  of  no  use  to  complainant  without  the  other  one  tliou- 
sand  seven  hundred  and  fifty  feet,  each  being  a  necessary  part  of  the 
entire  connecting  track ;  that  ever  since  the  completion  of  the  track,  in 
the  fall  of  1875,  it  was,  with  the  knowledge  and  acquiescence  of  the 
ferry  company,  maintained  and  operated  by  complainant,  for  more  than 
five  consecutive  years;  that  in  1876  complainant  applied  to  the  ferry 
company  for  a  deed  of  said  right  of  way,  and  the  latter  promised  to 
make  it  as  soon  as  it  could  have  a  survey  made  of  the  sixty  feet  wide 
strip,  and  thereafter,  on  a  subsequent  application,  refused  to  make  a 
deed;  that  on  April  17,  1881,  the  ferry  company  commenced  suIFirT 
an  action  of  forcible  detainer,  against  complainant,  to  recover  posses- 
sion of  the  middle  twenty  feet  of  said  sixty  feet  wide  right  of  way,  one 
thousand  seven  hundred  and  fifty  feet  in  length,  containing  said  con- 
necting track,  and  on  June  1,  1881,  the  ferry  company  made  a,_lease_ 
for  ten  years  for  said  middle  twenty  feet,  for  $250  per  annum,  to  the 
East  St.  Louis  Connecting  Railway  Company;  that  thereafter  the  ferry 
company  recovered  judgment  in  the  forcible  detainer  suit,  which  judg- 
ment was  affirmed  by  the  Appellate  and  Supreme  Courts,  whereupon, 
on  January  30,  1882,  a  writ  of  restitution  was  issued.  The  bill  prays 
that  the  ferry  company  may  be  enjoined  in  the  premises,  that  it  be  re- 
quired to  make  a  conveyance  of  the  right  of  way  to  complainant,  and 
that  the  lease  to  the  connecting  railway  company  be  cancelled.  The 
circuit  court,  on  the  hearing,  denied  the  relief  prayed  for,  and  ordered 
the  bill  to  be  dismissed.  On  appeal  to  the  Appellate  Court  for  the 
Fourth  District,  the  decree  was  affirmed,  and  complainant  appealed  to 
this  court. 

Mr.  Justice  Sheldon^*  delivered  the  opinion  of  the  Court: 
The  arrangement  under  which  the  embankment  and  railroad  track 
in  question  were  constructed,  was  made  with  S.  C.  Clubb,  the  super- 
intendent of  the  Wiggins  Ferry  Company.  Question  is  made  as  to 
what  was  the  character  of  that  arrangement,  it  being  contended  on  the 
side  of  the  appellant  that  it  was  a  contract  of  sale  of  the  right  of  way. 
But  that  we  do  not  regard  as  now  an  open  question,  under  the  deci- 
sion of  this  court  in  the  action  of  forcible  detainer  referred  to  in  the 
bill  which  was  brought  by  the  ferry  company,  against  the  appellant, 
wherein  it  recovered  judgment  for  the  possession  of  this  railroad  track, 
and  which  came  before  this  court  on  appeal  from  the  Appellate.  Court 
for  the  Fourth  District.  (See  St.  Louis  National  Stockyards  v.  Wig- 
gins Ferry  Co.,  102  111.  514.)  We  there  held  that  it  was  a  controverted 
question  of  fact,  in  the  case  before  the  Appellate  Court,  whether  such 

!•  Part  of  the  opinion  is  omitted. 


Ch.  3)  LICKNSE8  325 

agreement  was  a  contract  of  sale  of  the  right  of  way,  or  but  a  mere 
license,  and  that  it  must  be  taken  that  that  court  had  determined  it  to 
be  a  license,  which  was  a  finding  of  fact  that  was  conclusive  upon  the 
Supreme  Court,  and  leaving  as  the  only  question  for  its  decision,  wheth- 
er  jlTe_ferry  company  was  estopped  from  revoking  the  license,  and  if 
so,  whether  the  estoppel  could  be  made  available  in  the  action  at  law. 
Only  the  latter  branch  of  the  question  was  decided, — that  such  an  estop- 
pel could  not  be  availed  of  in  an  action  at  law,  but  only  in  a  suit  in 
equity, — and  the  judgment  was  affirmed,  without  in  any  way  passing 
upon  whether  there  was  such  an  estoppel  in  this  case  or  not.  We  must 
take  it,  then,  as  an  adjudicated  fact  not  liable  to  be  controverted  again, 
that  there  was  here  but  a  mere  license  to  construct  this  railroad  track, 
_andtlie  question  presented  for  determination  is,  whether,  under  the 
circumstances  of  this  case,  after  the  execution  of  the  license  by  the  con- 
struction  67  the^railway  track  at  a  considerable  expenditure  of  money, 
the  ferry  company  is  estopped  from  revoking  the  Hcense.     *     *     * 

The  evidence  on  the  part  of  appellant  tends  to  show  that  in  giving 
the  license  there  was  in  view  the  benefit  of  the  connecting  track  to  tlie 
ferry  company  in  having  lots  of  two  hundred  and  fifty  feet  in  depth 
running  back  from  Stockyard  avenue  to  the  track,  which  might  be 
valuable  for  manufacturing  purposes.  The  embankment  and  connect- 
ing railway  track  were  constructed,  at  considerable  cost,  upon  the  faith 
of  the  license  from  Clubb,  and  although  he  was  without  authority  to 
dispose  of  the  ferry  company's  lands,  it  must  be  taken,  under  the  proofs, 
that  the  track  was  constructed  and  operated  with  the  knowledge  and 
acquiescence  of  the  company,  and  there  is  evidence  tending  to  show 
that  anticipated  benefit  to  the  ferry  company's  land,  from  having  lots 
to  abut  on  the  connecting  track,  somewhat  entered  into  the  considera- 
tion  for  giving  the  Hcense.  The  circumstances  might  well,  under  the 
decisions  of  some  courts,  constitute  an  estoppel  in  pais  against  the 
revocation  of  the  license,  on  the  ground  that  to  revoke  it  would  be  a 
fraud,  after  such  an  expenditure  of  money  upon  the  faith  of  the  license, 
and  therfe  would  be  compelled  specific  performance,  by  deed  of  the 
right  of  user,  as  of  a  contract  in  part  executed.  But  there  was  a  con- 
trary rule  established  in  this  State  in  the  case  of  Woodward  v.  Seely, 
11  111.  157,  50  Am.  Dec.  445,  where  it  was  decided  that  a  license 
^ou£led_\vith  an  interest  in  land  must  be  in  writing;  that  a  license  per- 
petually to  overflow  one's  land  would  create  an  interest  in  the  land,  and 
the  license  could  not  be  granted  by  parol ;  that  a  court  of  equity  would 
not  enforce  a  parol  Hcense  to  overflow  the  lands  of  the  licenser,  even 
in  favor  of  a  party  who  had  acted  in  good  faith  upon  the  parol  license, 
and  made  valuable  improvements  upon  his  own  land,  which  would  be- 
come worthless  if  the  license  w^as  revoked.  *  *  *  Woodward  v, 
Seeley  has  never  been  overruled  or  directly  questioned  by  this  court, 
that  we  are  aware  of,  and  we  tliink  it  must  govern  this  case.  It  has 
stood  so  long  as  the  rule  in  this  State  that  we  are  disposed  to  adhere 
to  it,  without  entering  upon  consideration  of  whether  or  not  it  might 


326  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part   2 

be  the  proper  one  to  adopt  were  the  question  now  an  original  one  be- 
fore this  court. 

The  judgment  of  the  Appellate  Court  will  be  affirmed. 

Judgment  affirmed.  s 

Walker,  Dickey  and  Craig,  JJ.,  dissenting.  ?  '^  -^  a.K^*^[ 

Subsequently,  upon  an  application  for  a  rehearing,  the  following  ad- 
ditional opinion  was  filed : 

Mr.  Justice  Mulkey,  After  a  very  careful  reconsideration  of  this 
case  a  majority  of  the  court  adhere  to  the  conclusion  reached  upon  the 
former  hearing,  as  expressed  in  the  opinion  already  filed  in  it. 

The  case  of  Woodward  v.  Seely,  11  111.  157,  50  Am.  Dec.  445,  can  not 
be  distinguished  from  the  present  one,  and  the  authority  of  that  case, 
standing,  as  it  does,  in  line  with  the  decided  weight  of  authority,  has 
been  too  long  recognized  by  this  court  as  a  correct  exposition  of  the 
law  upon  the  question  involved,  to  be  now  overruled  without  any  spe- 
cial reason  for  doing  so.  A  contrary  conclusion  can  not  be  placed  upon 
any  grounds,  however  plausible,  which  are  not  fully  met  by  the  Wood- 
ward-Seely  Case,  and  many  others  adopting  the  same  view  of  the  law. 
Moreover,  the  conclusion  reached  is  in  harmony  with  other  well  set- 
tled principles  of  law.  The  contrary  view  is  not.  The  right  to  build 
a  railroad  track  and  operate  it  upon  the  land  of  another  is  an  interest 
in  land  which  can  only  pass  by  grant,  and  an  agreement  to  convey  such 
a  right,  if  not  in  writing,  is  clearly  within  the  Statute  of  Frauds.  If, 
"lioweve'f ,  a  party,  "verbally  contracting  for  such  right,  enters  upon  the 
land  and  expends  money  in  building  the  track,  upon  the  faith  of  the 
owner's  verbal  promise  to  convey,  and  he  otherwise  performs  or  of- 
fers to  perform  his  part  of  the  agreement,  such  performance  or  par-  ' 
tial  performance  will,  as  in  other  cases,  take  the  case  out^f  the  statute, 
and  a  court  of  equity  will  decree  a  specific  performance  of  the  agree- 
ment; but  in  this  case  we  start  out  with  the  proposition  conceded  there_ 
was  neither  a  conveyance  nor  a  promise  to  convey.  Specific  perform- 
ance, as  an  equitable  remedy,  by  its  very  terms  presupposes  the  ex- 
istence of  a  contract  between  the  parties  to  the  controversy,  of  between 
those  through  whom  they  claim,  for  it  were  absurd  to  talk  of  the  spe- 
cific performance  of  an  agreement  that  has  no  existence.  In  the  case 
before  us  it  has  b^en  solemnly  adjudicated  that  the  railroad  track  in 
question  was  not  constructed  under  any  contract,  promise  or  agreement 
on  the  part  of  the  Wiggins  Ferry  Company  to  convey  the  right  of  way 
to  the  appellant,  and  that  in  building  the  track  the  latter  Was  acting  un- 
der a  mere  license.  It  follows,  therefore,  that  so  much  of  appellant's 
argument  as  is  based  upon  the  assumption  there  was  such  an  agreement, 
is  not  warranted  by  the  record,  and  as  this  assumption  has  no  founda- 
tion in  fact,  the  argument  based  upon  it  must  necessarily  fail. 

The  only  material  question  in  this  suit  not  settled  by  the  former  case 
between  the  parties,  (reported  on  102  111.  514,)  is,  whether  conceding, 
as  we  must,  appellant  entered  appellee's  premises  and  built  the  track  in 
question  under  a  mere  parol  license  from  the  Wiggins  Ferry  Company, 


Ch.  3)  LICENSES  327 

the  latter  has  at  any  time  been  guilty  of  such  conduct  as  to  estop  it 
from  asserting  its  right  to  the  possession  of  the  land  upon  which  the 
track  is  built.  If  any  such  estoppel  exists,  it  is  what  is  known  as  an 
estoppel  in  pais,  and  consists  in  appellee  having  said  or  done  sometliing 
whereby  appellant  has  been  misled  to  its  injury  if  the' license  is  revok- 
ed. Now,  it  is  clear  that  outside  of  the  fact  of  revoking  the  license 
there  is  no  ground  for  tlie  claim  that  appellant  has  in  any  way  been 
deceived  or  misled  by  appellee.  Permission  was  given  to  build  the 
track  at  the  place  it  was  bmlt,  and  it  was  probably  built  about  as  both 
parties  supposed  it  would  be.  No  deception  was  practiced,  so  far  as 
we  can  perceive,  by  either  of  the  parties,  ^nd  none  has  been  suggested. 
It  was  a  plain,  common  business  transaction.  No  compensation  on  the 
one  hand  was  asked  for  the  right  of  way,  nor  was  any  guaranty  asked 
on  the  other  side  as  to  the  length  of  time  this  right  of  way  should  be 
enjoyed.  Probably  both  parties  supposed  the  operation  of  the  road 
would  be  mutually  beneficial,  and  tliat  that  would  be  ample  security 
against  appellee  revoking  the  license  on  the  one  hand,  and  against  ap- 
pellant removing  its  track  on  the  other.  If  appellant  saw  proper,  as  it 
did,  to  enter  upon  appellee's  land  and  spend  money  in  constructing  its 
track,  u2on_a  mere  paro^l  license,  which,  as  matter  of  law,  it  is  conclu- 
sively presurnea  to  have  known  was  revocable  at  the  pleasure  of  appel- 
lee, it  was  its  own  folly.  The  case  in  this  respect  does  not  differ  in  prin- 
ciple from  any  other  where  the  licensee  has  expended  money  in  connec- 
tion with  his  entry  upon  land  of  the  licenser.  Indeed,  this  most  gener- 
ally occurs.  Suppose,  under  the  circumstances,  appellant  had  concluded 
it  was  to  its  interest  to  take  up  the  track  altogether,  it  unquestionably 
would  have  had  the  right  to  do  so,  however  much  appellee  may  have 
been  injured  in  consequence  of  it.  On  principle  it  would  seem  there 
ought  to  be  some  mutuality  in  this  respect.  The  only  thing  about  which 
appellant  can  have  the  slightest  pretence  for  the  charge  that  it  has  been 
misled  to  its  injury,  is  the  bare  fact  tliat  appellee  has  exetcised  the  right 
of  revocation,  when  it  was,  perhaps,  thought  it  never  would.  It  is 
hardly  accurate,  under  the  circumstances,  to  say  appellant  was  misled, 
for  unless  the  mere  grant  of  the  license  to  build  the  track  was  an  im- 
plied undertaking  to  never  exercise  the  right  of  revocation,  appellant 
was  not  warranted  in  assuming  appellee  would  never  exercise  such 
right,  and  if  appellant's  expectations  in  this  respect  have  not  been 
realized,  it  was  simply  disappointed,  rather  than  deceived,  by  the  revo- 
cation. To  say  that  tlie  license  is  irrevocable  because  the  thing  per- 
mitted to  be  done  necessarily  involved  the  expenditure  of  money,  would 
be  going  beyond  the  most  extreme  views  on  the  subject,  and  make  most 
licenses  irrevocable.  The  practical  effect  of  such  a  doctrine  would  be 
to  make  most  licenses  conveyances  of  an  interest  in  land  by  mere  estop- 
pel in  pais.  Ultra  as  this  view  manifestly  is,  if  we  stop  short  of  it 
the  present  appeal  can  not  be  maintained.  Such  a  decision  would  es- 
tablish the  rule  that  all  licenses  founded  upon  a  valuable  consideration, 
or  necessarily  involving  the  expenditure  of  money,  would  be  irrevoca- 


328  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

ble,  which  would  practically  destroy  the  distinction  between  a  license 
and  a  grant.     To  go  to  this  extent  would  be  to  overrule  all  this  court 
has  ever  said  on  the  subject,  and  place  it  in  direct  antagonism  with  the 
overwhelming  current  of  authority.    This  we  are  not  prepared  to  do. 
Rehearing  denied,^' 


WISEMAN  et  al.  v.  LUCKSINGER.      " 
(Court  of  Appeals  of  New  York,  ISSl.    84  N.  Y.  31,  38  Am.  Rep.  479.) 

Appeal  from  judgment  of  the  General  Term,  fourth  department,  en- 
tered upon  an  order  affirming  a  judgment  in  favor  of  plaintiff,  enter- 
ed upon  a  decision  of  the  court  on  trial  at  a  Special  Term. 

This  action  was  brought  to  restrain  defendant  from  interfering  with 
plaintiff's  right  of  drainage  across  defendant's  premises,  and  for  dam- 
ages, etc.  "^ 

The  facts  appear  in  the  opinion.    Judgment  for  plaintiff. 

Danforth,  J.^*  Although  the  action  is  in  equity  the  plaintiffs 
sought  compensation  in  damages  as  well  as  equitable  relief ._  The  for- 
mer was  denied  to  them,  but  the  latter  has  been  granted  to  the  full  ex- 
tent asked  for.  I  can  discover  no  ground  upon  which  it  can  be  ap- 
proved. 

The  parties  are  owners  of  adjoining  city  lots  in  the  city  of  Syracuse. 
The  defendant  built  an  underground  drain  or  sewer  of  plank  from  the 
basement  of  his  house,  through  his  own  lot  and  that  of  one  Stern,  to 
Jefferson  street  sewer,  and  afterward  "and  more  than  twenty-five  years 
last  past,  the  plaintiff;"  as  the"  trial  court  finds,  "purchased  of  the  de- 
fendant the  right  and  easement  to  drain  his  premises,  by  an  under- 

17 Ace:  Profile  Cotton  Mills  v.  Calhoun  Water  Co.,  189  Ala.  181,  66  South. 
50  (1914) ;  Foot  v.  New  Haven  &  Northampton  Co.,  23  Conn.  214  (1854) ; 
Stratton's  Independence  v.  Midland  Terminal  R.  Co.,  32  Colo.  493,  77  Fac. 
247  (1904);  Hodgkins  v.  Farrington,  150  Mass.  19,  22  N.  E.  73,  5  L.  R.  A. 
209,  15  Am.  St.  Rep.  168  (1889) ;  Nowlin  Lumber  Co.  v.  Wilson,  119  Mich. 
406,  78  N.  W.  838  (1899) ;  Minneapolis  Mill  Co.  v.  Minneapolis  &  St.  L.  Ry. 
Co.,  51  Minn.  304,  53  N.  W.  639  (1892).  with  which  compare  Munsch  v.  Stelter, 
109  Minn.  403,  124  N.  W.  14,  25  L.  R.  A.  (N.  S.)  727,  134  Am.  St.  Rep.  785 
(1910) ;  Belzoni  Oil  Co.  v.  Yazoo  &  M.  V.  R.  Co.,  94  Miss.  58,  47  South.  468 
(1908) ;  Lewis  v.  Ration,  42  Mont.  528,  113  Pac.  745  (1911) ;  Houston  v.  Laffee, 
46  N.  H.  505  (1866) ;  Lawrence  v.  Springer,  49  N.  J.  Eq.  289,  24  Atl.  933,  31 
Am.  St.  Rep.  702  (1892) ;  Crosdale  v.  Lanigan,  129  N.  Y.  604.  29  N.  E.  824,  26 
Am.  St.  Rep.  551  (1892) ;  Kivett  v.  McKeithan,  90  N.  C.  106  (1884) ;  Yeager 
V.  Tuning,  79  Ohio  St.  121,  86  N.  E.  657,  19  L.  R.  A.  (N.  S.)  700,  128  Am. 
St.  Rep.  679  (1908) ;  Yeagar  v.  Woodruff,  17  Utah,  361,  53  Pac.  1045  (1898) ; 
Hathaway  v.  Yakima  Water,  Light  &  Power  Co.,  14  Wash.  469,  44  Pac.  896,  53 
Am.  St.  Rep.  874  (1896) ;  Pifer  v.  Brown,  43  W.  Va.  412,  27  S.  E.  399  (1897). 
And  see  note  to  same  case  in  49  L.  R.  A.  497. 

Compare  Girard  v.  Lehigh  Stone  Co.,  280  111.  479,  117  N.  E.  698  (1917). 

A.  gave  B.  permission  to  construct  and  maintain  an  irrigation  ditch  through 
A.'s  land,  "until  the  Reclamation  Service  shall  provide  other  means  tor 
conducting  irrigation  water."  B.  so  built.  Held,  A.  may  revoke  the  li- 
cense at  any  time.  Davis  v.  Tway,  16  Ariz.  566,  147  Pac.  750,  L.  R.  A. 
1915E,  604  (1915). 

18  Part  of  the  opinion  is  omitted. 


Ch.  3)  LICENSES  329 

ground  drain  and  covered  sewer,  through  the  defendant's  premises,  for 
the  consideration  of  $7,  which  the  plaintiff  paid  and  the  defendant  ac- 
cepted;" and  thereupon  the  plaintiff,  partly  upon  his  own  premiss 
and  partly  on  those  of  the  defendant,  built  an  underground  sewer  of 
plank  to  connect  with  the  sewer  of  the  defendant.  The  connection 
was  made  a  short  distance  from  the  line  dividing  the  respective  lots. 
It  is  further  found  that  "the  plaintiff  for  over  twenty-five  years  en- 
joyed the  privilege  as  of  right  of  draining  his  own  premises  through 
this  sewer,  until  July  22,  1876,  when  the  connection  was  cut  off  by  the 
defendant  on  his  own  land."  At  that  time,  he  denied  the  plaintiff's 
right,  obstructed  the  flow  of  water,  "and  refused  to  allow  the  plaintiff" 
to  go  upon  his  premises  to  maintain  and  repair  the  said  sewer."  It  is 
also  found  that  "before  this,  and  in  1873,  the  plaintiff  caused  his  old 
sewer  to  be  taken  up  and  replaced  with  a  tile  sewer  of  a  capacity  great- 
er than  that  of  defendant's  sewer,  with  which  it  was  connected."  The 
plaintiff  had  also  made  changes  in  the  form  of  his  privy  vault,  and  the 
court  found  that  "after  this  change,  and  the  alteration  and  enlarge- 
ment of  his  sewer  by  the  plaintiff',  the  filth  and  foul  water  from  his 
pri\^  flowed  back  into  the  cellar  of  the  defendant,  creating  stench  and 
a  great  nuisance  to  defendant,  rendering  his  house  unfit  to  live  in,  and 
that  to  prevent  such  injury  to  his  premises  the  defendant  tore  up  said 
sewer." 

The  learned  court  also  found  as  a  fact  that  "no  deed  of  conveyance 
of  said  easement  or  right  to  drain  through  said  defendant's  premises 
was  ever  executed  by  defendant  to  plaintiff,  nor  was  any  written  con- 
tract agreeing  to  convey  ever  executed  by  defendant  or  any  one  for 
him,  except  the  receipt  for  $7  for  the  right  to  drain  through  defend- 
ant's premises."  The  receipt  referred  to  was  not  produced  upon  the 
trial,  but  after  proving  its  loss,  the  plaintiff  was  allowed  to  show  its 
contents  by  his  witnesses.  Neither  of  them  had  seen  the  paper  for 
many  years,  and  there  was  some  difference  as  to  its  form.  It  is  not 
stated  by  the  court  in  any  other  way  than  in  the  above  finding,  but  it 
is  given  by  one  witness  in  these  words:  "Received  of  Joseph  Wise- 
man, seven  dollars,  for  the  right  to  drain  through  my  premises ;"  and 
this,  he  says,  bore  the  signature  of  the  defendant.  It  is  adopted  by  the 
learned  counsel  for  the  respondents  in  his  points,  and  is  the  form  most 
favorable  to  his  contention.  The  trial  court  found,  "as  conclusion  of 
law  and  equity,  that  the  plaintiff  acquired  the  right  of  draining  his 
premises  on  the  defendant's  premises  more  than  twenty-five  years  be- 
fore the  said  obstruction,  and  during  all  that  time  enjoyed  the  same  as 
of  right;  that  the  plaintiff  is  entitled  to  judgment  declaring  his  said 
right  and  easement  on  the  defendant's  premises  and  restraining  him 
from  interfering  with  the  plaintiff's  enjoyment  of  such  easement;  and 
that  the  plaintiff  is  entitled  to  go  upon  the  defendant's  premises  to  re- 
build and  repair  the  same."  Judgment  was  entered  accordingly,  and 
ft  having  been  affirmed  by  the  General  Term,  the  defendant  has  ap- 
pealed to  this  court. 


330  RIGHTS  IN  THE  LAND   OF  ANOTHER  (Part  2 

The  right  awarded  to  the  plaintiff  to  have  his  drain  pass  through  the 
defendant's  land  is  in  the  terms  of  the  judgment  an  easement,  and  for 
its  enjoyment  requires  that  the  plaintiff  shall  have  an  interest  in  the 
defendant's  land.     *     *    * 

It  is  therefore  within  the  statute  "of  fraudulent  conveyances  and 
contracts  relative  to  land,"  and  could  neither  be  created,  granted  or 
declared,  except  by  deed  or  conveyance  in  writing  (2  R.  S.,  tit.  1,  chap. 
7,  part  2,  §  6,  p.  134) ;  so  that  consent,  although  in  writing,  will_be  of 
no  more  avail  than  it  would  be  if  given  by  word  of  mouth.  Indeed 
this  is  conceded  by  the  learned  counsel  for  the  plaintiff  to  be  so  at  law ; 
but  he  contends. that  in  equity  the  case  is  otherwise,  and  says,  that 
"courts  of  equity  give  effect  to  parol  agreements  for  the  grant  of  an 
easement  when  founded  upon  a  valuable  consideration."  Assuming 
that  to  be  so,  we  may  inquire  whether  there  is  any  thing  in  this  case 
to  call  for  the  exercise  of  such  extraordinary  jurisdiction.  And  first, 
the  contract  which  equity  will  regard  as  equivalent  to  the  grant  re- 
quired at  common  law  or  by  the  statute  must  be  a  complete  and  suffi- 
cient contract,  founded  not  only  on  a  valuable  consideration,  but  its 
terms  defined  by  satisfactory  proof,  and  accompanied  by  acts  of  part 
performance  unequivocally  referable  to  the  supposed  agreement.  In 
such  a  case  the  application  of  the  statute  is  withheld,  lest  by  its  inter- 
position the  mischief  would  be  encouraged  which  the  Legislature  in- 
tended to  prevent. 

There  is,  I  think,  little  danger  of  that  in  the  present  case.  If  we  look 
at  the  situation  of  the  parties  at  the  time  the  contract  was  entered  into, 
it  will  be  difficult  to  infer  that  they  considered  the  arrangement  indi- 
cated by  the  writing  to  be  a  permanent  one.  The  lots  of  both  parties 
fronted  upon  a  public  street — in  it  there  was  no  sewer.  If  there  had 
been,  it  cannot  be  doubted  that  as  the  easiest,  cheapest  and  most  natural 
way  of  drainage,  they  would  have  used  it.  As  it  was,  the  defendant 
was  obliged  not  only  to  carr}'  his  drain  the  whole  length  of  his  lot,  but 
first  by  license,  and  then  by  purchase,  acquire  the  right  to  cross  anoth- 
er lot  before  an  outlet  for  his  drain  could  be  had.  His  drain  was  built 
of  plank,  at  little  expense  and  soon  perishable.  While  in  this  condi- 
tion the  plaintiff  applies,  according  to  his  own  testimony,  for  the  priv- 
ilege of  draining  his  lot  into  the  defendant's  drain,  and  obtains  it  by 
the  payment  of  $7.  So  much  the  receipt  indicates.  There  is  nothing 
more.  Its  language  is  equivocal.  It  would  be  satisfied  by  drainage 
during  the  pleasure  of  the  defendant,  or  during  the  life  of  the  plaintiff, 
or  until  a  public  sewer  should  be  constructed  in  the  street  by  which 
the  lot  was  bounded.  There  is  nothing  said  as  to  how  long  it  should 
continue.  And  when  we  consider  the  heavy  imposition  that  would  rest 
upon  the  defendant's  lot,  the  annoyance  from  smells,  the  perpetual 
lien  and  incumbrance,  necessarily  rendering  the  land  unsalable  or  of 
less  value  in  the  market — less  available  for  improvement — compelling 
the  defendant  so  to  build  that  his  structure  should  not  interfere  with 
the  plaintiff's  right  of  drainage,  of  inspection,  of  rebuilding  and  repara- 

^'  ^-  jwW. 


Ch.  3)  LICENSES  331 

tion,  we  find  nothing-  which  permits  the  inference  that  the  permission 
indicated  bv-the  receipt  was  intended  to  be  in  perpetuity.  The  nature 
and  character  of  the  easement,  the  purpose  which  it  was  intended  to 
serve,  and  other  circumstances  above  adverted  to,  must  be  taken  into 
account.  The  effect  of  the  judgment  is  to  deprive  the  defendant  of  the 
full  enjoyment  of  his  property,  and  subject  it  to  the  control  of  another. 
I  am  unable  to  find,  in  the  words  of  the  parties,  any  intention  to  pro- 
duce that  result.  It  is  not  expressed  in  the  receipt,  nor  is  it  fairly  to 
be  implied.  Full  effect  may  be  given  to  it  by  regarding  it  as  a  tempo- 
rary  arrangement;   and  it  should,  I  think,  be  so  construed.     *     *     * 

The  plaintiff  has  made  out  no  case  against  this  appeal ;  and  the  judg- 
ments of  the  General  and  Special  Terms  should  therefore  be  reversed 
and  a  new  trial  granted,  with  costs  to  abide  the  event. ^® 

All  concur,  except  Earl,  J.,  dissenting;  Finch,  J.,  concurring  in 
result. 

Judgment_rgY.ei:aed.  .-^^*-^  -^-  L  ■ 

HURST  v.  PICTURE  THEATRES,  Limited. 

(Court  of  Appeal,  1914.     [1915]  1  K.  B.  1.) 

Appeal  of  the  defendants  from  a -decision  of  Channell,  J.,  at  the  trial 
with  a  special  jury. 

The  plaintiff  sued  to  recover  damages  for  an  alleged  assault  and  false 
imprisonment. 

The  plaintiff  stated  in  his  evidence  that,  being  attracted  by  an  ad- 
vertisement announcing  that  a  picture  of  Lake  Garda  was  being  shewn 

i»Acc.:  Cook  V.  Ferbert,  145  Mo.  462,  46  S.  W.  947  (1S98).  See  Thoeruke 
V.  Fiedler,  91  Wis.  386,  64  N.  W.  1030  (1895). 

A.  and  B.  were  owners  of  adjoining  city  lots.  A.,  for  a  valuable  consid- 
eration, gave  B.  oral  permission  to  get  access  to  the  second  story  of  his 
building  by  means  of  a  staircase  in  A.'s  building.  B.' altered  his  building  to 
conform  to  this  plan.  Held,  B.  may  enjoin  A.  from  preventing  B.  from  so 
using  the  staircase.  Kastner  v.  Benz,  67  Kan.  486,  73  Pac.  67  (1903).  Ace: 
Surapter  Rv.  Co.  v.  Gardner,  49  Or.  412,  90  Pac.  499  (1907) ;  Meetze  v.  Char- 
lotte, C.  &  A.  R.  Co.,  23  S.  C.  1  (1885). 

See  Western  Union  Tel.  Co.  v.  Pennsylvania  Co.,  129  Fed.  849,  861,  64  C. 
C.  A.  285,  68  L.  R.  A.  968   (1904). 

Compare  Morton  Brewing  Co.  v.  Morton,  47  N,  J.  Eq.  158,  20  Atl.  280  (1890). 

A.  and  B.  orally  agreed  to  sink  a  well  upon  what  was  believed  to  be  the 
dividing  line  between  the  land  of  A.  and  of  B.  It  was  also  agreed  that,  it 
the  well  should  not  be  upon  the  line,  the  ownership  of  it  should  remain 
unchanged.  The  well  was  sunk  as  agreed  upon,  each  party  paying  his  share 
of  the  expense,  and  a  windmill  was  also  erected  at  their  joint  expense, 
hater  it  was  found  that  the  well  was  wholly  upon  B.'s  land.  B,  obstructed 
A.'s  access  to  the  well.  On  a  bill  by  A.  to  enjoin  B.  from  interfering  with 
his  use  of  the  well,  held,  A.'s  bill  to  be  dismissed  upon  B.'s  paying  A., 
within  a  time  to  be  fl.xed  by  the  trial  court,  an  amount  equal  to  A.'s  contri- 
Inition  to  the  sinking  of  the  well  and  his  share  of  the  value  of  the  wind- 
mill ;  if  B.  does  not  so  pay,  he  to  be  enjoined  from  interfering  with  A.'s 
use  of  the  well  until  payment,  or  the  disuse  of  the  well  by  both  parties 
Johnson  v.  Barton,  23  N.  D.  629,  137  N.  VV.  1092,  44  L,.  R.  A.  (N.  S)  5o7 
(1912).     See  Wynn  v.  Garland,  19  Ark.  23,  68  Am.  Dec.  190   (1857). 


332  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

at  the  defendants'  cinema  theatre  at  High  Street,  Kensington,  he  went 
to  that  theatre  on  March  17,  1913,  for  the  purpose  of  seeing  it.  At  the 
pay  office  he  tendered  a  florin  and  asked  for  a  sixpenny  seat,  and  was 
given  a  metal  check  and  the  change ;  the  check  entitled  him  to  an  un- 
reserved seat.  He  gave  up  his  check  at  the  door  leading  into  the 
theatre,  and  was  shown  into  a  seat  by  a  young  woman  with  an  electric 
torch.  After  the  performance  had  proceeded  for  some  little  time,  a 
girl  came  up  and  asked  plaintiff  if  he  had  cOme  in  with  a  ticket,  and, 
on  his  replying  that  he  had,  the  girl  went  away.  Shortly  afterwards 
another  girl  came  up  and  asked  him  to  come  out  and  see  the  manager, 
but  he  refused.  Then  a  man  in  evening  dress  came  up  and  asked  him 
^o  come  and  see  the  manager,  but  he  againjrefused.  Then  the  manager 
himself  came  up  and  asked  the  plaintiff  to  come  outside,  and,  on  his  re- 
fusing, said,  "Then  we  shall  have  to  compel  you."  A  porter  or  door- 
keeper, who  was  sent  by  the  manager,  then  asked  the  plaintiff  to  go 
out,  which  he  refused  to  do.  The  porter  went  out  and  returned  with 
a  policeman,  whom  he  asked  to  put  the  plaintiff  out.  This  the  police- 
man refused  to  do,  suggesting  that  the  porter  should  do  it  himsel£. 
The  porter  then  made  his  way  into  the  row  of  seats  and,  takijig  hold 
off  the  plaintiff  under  the  arms,  lifted  him  out  of  his  seat.  The  plain- 
tiff then  walked  quietly  out.  No  unnecessary  violence  was  used  in  thus 
ejecting  the  plaintiff. 

The  defendants  justified  their  conduct  on  the  ground  that  the  plain- 
tiff had  not  taken  a  ticket  for  that  performance.  They  also  contended 
that  they  were  entitled,  without  assigning  any  reason,  to  call  on  the 
plaintiff  to  leave  the  theatre,  and,  if  he  declined,  to  forcibly  remove  him, 
relying  on  the  authority  of  Wood  v.  Leadbitter,  13  M.  &  W.  838. 

Channels,  J.,  was  of  opinion  that  Wood  v.  Leadbitter,  13  M.  &  W. 
838,  was  no  jonger  good  law,  and  held  that  a  visitor  to  a  theatre  who 
had  paid  for  his  seat  had  a  right  to  retain  his  seat  so  long  as  the  per- 
formance lasted,  provided  he  behaved  quietly  and  complied  with  the 
regulations  laid  down  by  the  management.  He  left  to  the  jury  the 
question  whether  the  plaintiff  had  paid  for  his  seat,  and  the  jury  found 
that  he  had,  and  assessed  the  damages  at  £150. 

The  defendants  appealed. 

Buckley,  L.  J.^°  We  have  listened  in  this  case  to  a  very  ingenious 
and  interesting  argument  from  Mr.  Mackinnon,  but,  if  I  may  borrow 
the  words  of  Lord  Esher  in  Butler  v.  Manchester,  Sheffield  &  Lincoln- 
shire Railway  (1888)  21  Q.  B.  D.  207,  211,  it  may  have  been  quite 
right  for  the  appellants'  counsel  to  suggest  the  point,  but  when  consid- 
ered it  is  contrary  to  good  sense.  I  may  add  that  I  think  it  is  not  only 
contrary  to  good  sense,  but  contrary  also  to  good  law  as  administered 
since  the  Judicature  Act  in  this  Court,  The  proposition  which  Mr. 
Mackinnon  sets  out  to  affirm  is  that  if  a  man  has  paid  for  his  seat  at 

20  Part  of  the  opinion  of  Buckley,  L.  J.,  and  the  opinions  of  Kennedy  and 
Phillimore,  L.  JJ.,  are  omitted. 


Ch.  3)  LICENSES  333 

the  opera,  or  the  theatre,  and  has  entered  and  taken  his  seat,  and  is  be- 
having himself  quite  properly,  it  is  competent  to  the  proprietors  of  tlie 
theatre,  merely  because  they  choose  so  to  do,  to  call  upon  him  to  with- 
draw before  he  has  seen  the  performance  for  the  enjoyment  of  which 
he  has  paid ;  that  what  he  has  obtained  for  his  money  is  a  mere  reyoca- 
ble  license  to  come  upon  the  land  of  the  proprietor  of  the  theatre,  and 
that  tlie  proprietor  may,  simply  because  he  chooses,  say,  "I  revoke  your 
licence;  go."  If  that  proposition  be  true,  it  involves  startling  results. 
Kennedy,  L.  J.,  has  suggested  one.  Suppose  that  tliere  be  sitting  in 
the  stalls  a  man  who  is  a  constant  patron  of  tlie  opera  or  the  theatre, 
to  whom  the  management  pay  great  deference,  whether  from  his  rank 
or  his  habit  of  attendance :  he  goes  to  the  management  and  says,  "I 
do  not  like  tlie  person  sitting  in  front  of  me  or  next  to  me;  ask  him 
to  go."  It  would  be  competent  to  the  management  to  go  to  that  per- 
son and  say,  "Please  go;  you  cannot  have  your  money  back;  go." 
Further,  if  the  proposition  is  right,  it  follows  that,  having  let  tlie  seat 
to  A.,  the  management  may  come  to  A.  at  the  end  of  the  first  act  or 
before  and  say,  "I  revoke  your  licence;  go,"  and  he  has  to  go.  The 
management  may  let  the  seat  to  B.  for  the  rest  of  the  performance, 
and  at  tlie  end  of  the  second  act  or  sooner  they  may  come  to  B.  and 
say  "I  revoke  your  licence;  go."  He  will  have  to  go,  and  they  may 
let  tlie  seat  a  third  time  to  C.  Those  consequences  ensue  from  this 
proposition  if  it  be  well  founded.  It  was  for  that  reason  I  said  at  the 
outset  of  my  remarks  that  it  seems  to  me,  when  the  point  comes  to  be 
considered,  it  is  contrary  to  good  sense. 

Next  it  is  to  my  mind  contrary  also  to  good  law.  The  proposition 
is  based  upon  the  well-known  decision  in  Wood  v.  Leadbitter,  13  M,  & 
W.  838.  Let  me  at  the  outset  say  what  Wood  v.  Leadbitter,  13  M.  & 
W,  838,  seems  to  me  to  have  decided.  It  affirmed  that  a  mere  licence, 
whetlier  or  not  it  be  under  seal,  by  which  I  mean  a  licence  not  coupled 
with  an  interest  or  a  grant  whether  it  be  under  seal  or  not,  is  revocable. 
It  affirmed  also  that  if  there  be  a  licence  coupled  with  an  interest  or 
coupled  with  a  grant,  it  is  not,  or  at  any  rate  in  general  is  not,  revocable. 
For  those  two  propositions,  I  read  these  two  sentences  from  the  case 
of  Wood  V.  Leadbitter,  13  M.  &  W.  at  page  844:  "A  mere  licence  is 
revocable ;  but  that  which  is  called  a  licence  is  often  something  more 
than  a  licence ;  it  often  comprises  or  is  connected  with  a  grant,  and  then 
the  party  who  has  given  it  cannot  in  general  revoke  it,  so  as  to  defeat 
his  grant,  to  which  it  was  incident.  It  may  further  be  observed,  that 
a  licence  under  seal  (provided  it  be  a  mere  licence)  is  as  revocable  as 
a  licence  by  parol ;  and,  on  the  other  hand,  a  licence  by  parol,  coupled 
with  a  grant,  is  as  irrevocable  as  a  licence  by  deed,  provided  only  that 
the  grant  is  of  a  nature  capable  of  being  made  by  parol."  Those  are 
propositions  with  which,  as  it  seems  to  me,  no  one  quarrels  or  can 
quarrel  Wood  v.  Leadbitter,  13  M.  &  W.  838,  rested,  I  think  upon 
one  of  two  groimds — I  will  indicate  tliem  both — but  I  think  it  was  the 
second  of  those  which  I  am  going  to  mention.    The  first  ground  is  that 


-^    rix^e\- 


334  EIGHTS  IN  THE   LAND   OF  ANOTHER  (Part  2 

the  man  who  bought  his  ticket  for  tlie  race  meeting  had  not  obtained 
any  grant  of  the  right  to  come  during  the  currency  of  the  meeting  to 
see  any  particular  spectacle  from  its  commencement  to  its  termination. 
If  that  were  the  ground,  it  would,  I  think,  be  erroneous.  I  conceive 
he  had  the  right  to  see  what  was  to  be  seen  during  the  days  covered 
by  his  ticket.  But  I  do  not  think  that  was  the  ground  on  which  the 
Court  decided  it.  They  decided  it  upon  the  ground,  which  will  be 
found  at  page  842  and  onwards,  that  no  incorporeal  inheritance  affect- 
ing land  can  be  created  or  transferred  otherwise  than  by  deed,  a  propo- 
sition which  was  discussed  with  some  elaboration  in  the  course  of  the 
judgment.  What  Alderson,  B.,  was  saying  there  was :  this  man  has 
got  no  deed ;  he  had  got  nothing  under  seal ;  he  has  therefore  not  got 
a  grant ;  he  cannot  in  this  Court  be  heard  to  say  he  is  a  grantee,  and 
because  he  is  not  a  grantee  he  is  a  mere  licensee,  and  being  a  mere  li- 
censee (whether  it  is  under  seal  or  not  under  seal  does  not  make  any 
difference)  the  licence  is  revocable. 

Let  me  for  a  moment  discuss  this  present  case  upon  the  footing  that 
Wood  V.  Leadbitter,  13  M.  &  W.  838,  stands  as  good  law  at  this  date. 
I  am  going  to  say  presently  that  to  my  mind  it  does  not,  but  suppose 
it  does  stand  as  good  law  at  this  date.  What  is  the  grant  in  this  case? 
The  plaintiff  in  the  present  action  paid  his  money  to  enjoy  the  sight 
of  a  particular  spectacle.  He  was  anxious  to  go  into  a  picture  theatre 
to  see  a  series  of  views  or  pictures  during,  I  suppose,  an  hour  or  a 
couple  of  hours.  That  which  was  granted  to  him  was  the  right  to  en- 
joy looking  at  a  spectacle,  to  attend  a  performance  from  its  beginning 
to  its  end.  That  which  was  called  the  licence,  the  right  to  go  upon 
the  premises,  was  only  something  granted  to  him  for  the  purpose  of 
enabling  him  to  have  that  which  had  been  granted  him,  namely,  the 
right  to  see.  He  could  not  see  the  performance  unless  he  went  into 
the  building.  His  right  to  go  into  the  building  was  something  given  to 
him  in  order  to  enable  him  to  have  the  benefit  of  that  which  had  been 
granted  to  him,  namely,  the  right  to  hear  the  opera,  or  see  the  theatrical 
performance,  or  see  the  moving  pictures  as  was  the  case  here.  So  that 
here  there  was  a  licence  coupled  with  a  grant.  If  so,  Wood  v.  Lead- 
bitter,  13  M.  &  W.  838,  does  not  stand  in  the  way  at  all.  A  licence 
coupled  with  a  grant  is  not  revocable;  Wood  v.  Leadbitter,  13  M.  & 
W.  838,  affirmed  as  much. 

•  So  far  I  have  been  treating  it  as  if  Wood  v.  Leadbitter,  13  M.  &  W. 
838,  were  law  as  now  administered  in  every  Court.  Let  us  see  how 
that  matter  stands.  Wood  v,  Leadbitter,  13  M.  &  W.  838,  was  a  case 
decided  in  a  Court  of  law  before  the  Judicature  Act ;  it  was  a  case  to 
be  decided,  therefore,  simply  upon  the  principles  which  are  applicable 
in  a  Court  of  law  as  distinguished  from  a  Court  of  Equity.  What  wa?' 
the  principle  which  would  have  been  administered  in  a  Court  of  Equity 
in  the  year  1845,  the  date  of  Wood  v.  Leadbitter,  13  M.  &  W.  838,  or 
subsequently?  For  that  I  look  at  the  decision  of  Wood,  V.  C,  in  Frog- 
ley  V.  Earl  of  Lovelace  (1859)  John.  333.     *     *     * 


Ch.  3)  LICENSES  335 

The  position  of  matters  now  is  that  the  Court  is  bound  under  the 
Judicature  Act  to  give  effect  to  equitable  doctrines.  The  question  we 
have  to  consider  is  whether,  having  regard  to  equitable  considerations, 
Wood  V.  Leadbitter,  13  M.  &  W.  838,  is  now  law,  meaning  that  Wood 
V.  Leadbitter,  13  M.  &  W.  838,  is  a  decision  which  can  be  applied  in 
its  integrity  in  a  Court  which  is  bound  to  give  effect  to  equitable  con- 
siderations. In  miy  opinion,  it  is  not.  Cozens-Hardy,  J.,  as  he  then 
was,  the  present  Master  of  the  Rolls,  in  the  case  of  Lowe  v.  Adams, 
said  this  ([1901]  2  Ch.  598,  at  page  600):  "Whether  Wood  v.  Lead- 
bitter, 13  M.  &  W.  838,  is  still  good  law  having  regard  to  W^alsh  v. 
Lonsdale,"  21  Ch.  D.  9 — which  is  a  decision  of  the  Court  of  Appeal — 
"is  very  doubtful."  The  present  Lord  Parker,  then  Parker,  J.,  in  the 
case  of  Jones  v.  Earl  of  Tankerville,  says  tliis  ([1909]  2  Ch.  440,  at 
page  443) :  "An  injunction  restraining  the  revocation  of  the  licence, 
when  it  is  revocable  at  law,  may  in  a  sense  be  called  relief  by  way  of 
specific  performance,  but  it  is  not  specific  performance  in  the  sense  of 
compelling  the  vendor  to  do  anything.  It  merely  prevents  him  from 
breaking  his  contract,  and  protects  a  right  in  equity  whij^h  but  for  the 
absence  of  a  seal  would  be  a  right  at  law,  and  since  the  Judicature  Act 
it  may  well  be  doubted  whether  the  absence  of  a  seal  in  such  a  case 
can  be  relied  on  in  any  Court."  What  was  relied  on  in  Wood  v.  Lead- 
bitter, 13  M.  &  W.  838,  and  rightly  relied  on  at  that  date,  was  that  there 
was  not  an  instrument  under  seal,  and  therefore  there  was  not  a  grant, 
and  therefore  the  licensee  could  not  say  that  he  was  not  a  mere  licensee, 
but  a  licensee  with  a  grant.  That  is  now  swept  away.  It  cannot  be 
said  as  against  the  plaintiff  that  he  is  a  licensee  with  no  grant  merely 
because  there  is  not  an  instrument  under  seal  which  gives  him  a  right 
at  law. 

There  is  another  way  in  which  the  matter  may  be  put.  If  there  be 
a  licence  with  an  agreement  not  to  revoke  the  licence,  that,  if  given  for 
value,  is  an  enforceable  right.  If  the  facts  here  are,  as  I  think  they 
are,  that  the  licence  was  a  licence  to  enter  the  building  and  see  the 
spectacle  from  its  commencement  until  its  termination,  then  there  was 
included  in  that  contract  a  contract  not  to  revoke  the  licence  unil  the 
play  had  run  to  its  termination.  It  was  then  a  breach  of  contract  to 
revoke  the  obligation  not  to  revoke  the  licence,  and  for  that  the  deci- 
sion in  Kerrison  v.  Smith,  [1897]  2  Q.  B.  445,  is  an  authority.  So 
far  I  have  dealt  with  the  law.     *     *     * 

I  think  that  the  appeal  which  has  been  brought  before  us,  and  which 
is  founded  simply  upon  the  question  of  law  which  I  have  discussed  at 
the  beginning  of  this  judgment,  fails  and  must  be  dismissed  with  costs. 


336  RIGHTS   IN   THE    LAXD   OP   ANOTHER  (Part  2 


MILLER  V.  INHABITANTS  OF  GREENWICH  TP.  et  al 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1898.     62  N.  J.  Law,  771,  42 

AU.  735.) 

Collins,  J.  A  verdict  was  directed,  at  the  circuit,  in  favor  of  the 
defendants,  in  an  action  of  tort,  brought  to  recover  damages  for  in- 
jury to  real  property;  and,  upon  the  consequent  judgment,  this  writ 
of  error  was  brought.  The  complaint  in  the  declaration  was  of  the  cut- 
ting down  of  a  public  street  in  front  of  the  plaintiff's  house,  and  the 
destruction  of  a  sewer  or  drain  laid  across  it  for  the  use  of  the  plain- 
tiff. In  form,  the  allegation  was  trespass  quare  clausum  fregit.  To 
the  plea  of  not  guilty,  two  special  pleas  were  added, — one,  that  the 
defendant  Rambo,  who  was  a  member  of  the  township  committee  of 
the  township  of  Greenwich,  did  the  injur}--  complained  of,  in  the  amend- 
ing and  repairing  of  the  street  by  direction  of  the  township  committee ; 
and  the  other,  that  he  did  the  injury  by^  virtue  of  an  ordinance,  of  the 
township.  T*  these  pleas  the  replication  de  injuria  was  interposed,  and 
the  issue  came  on  to  be  tried.  Tt  appeared  that  the  plaintiff's  title  ran 
only  to  the  side  of  the  street  upon  which  his  land  abutted,  and  that  the 
sewer  existed  by  parol  license  from  one  Paul,  the  owner  of  the  fee  of 
the  land  in  the  street  and  on  the  opposite  side.  The  direction  of  ver- 
dict was  upon  the  idea  that  the  plaintiff  had  no  property  rights  in  the 
premises.  It  is  not  necessary  to  consider  his  rights  in  the  street,  but 
he  surely  had  a  right  to  his  sewer. 

The  learned  trial  judge  seems  to  have  based  his  contrary  decision 
upon  the  case  of  Wiseman  v.  Lucksinger,  84  N.  Y.  31,  38  Am.  Rep.  479, 
which  holds  that  an  easement  to  drain  through  the  lands  of  an  adjoin- 
ing owner  can  only  be  created  by  deed.  Granting  this,  still  an  unre- 
voked license  has  value;  and,  as  agajnst  every  one  but.t.he  licensor  or 
those  claiming  under  him,  an_action  ought  Fo  lie  for  injury  to  the_ li- 
censee. For  mere  disturbance  of  an  easement,  the  remedy  at  common 
law  was  an  action  on  the  case  (1  Chit.  PL  142) ;  but  trespass  was  al- 
ways proper  where  there  was  an  exclusive  right  of  possession,  as  there 
must  have  been  of  the  sewer  in  question  (Id.  174).  Under  our  rules  of 
pleading,  trespass  and  case  are  now  both  styled  actions  of  tort,  and  the 
form  of  declaring  is  not  very  important.  It  has  long  since  been  ad- 
judged in  the  supreme  court  that  an  injury  by  a  stranger,  to  an  exclu- 
sive  possession,  in  lands,  of  a  mere  ITcensee,  is  actionable.  A  pertinent 
case  is  Paul  v,  Hazelton,  57"K.  J.  Law,  106.  It  was  there  held  that, 
although  the  exclusive  right  given  by  statute  to  a  riparian  owner  to 
,  plant  oysters  in  the  bed  of  a  navigable  stream  adjacent  to  his  land  is 
a  mere  license  subject  to  revocation,  yet  that  an  action  of  trespass 
quare  clausum  fregit  will  lie  for  an  invasion  of  that  right. 

We  entirely  approve  of  the  doctrine  underlying  this  case,  and  think 
it  applicable  to  that  now  before  us.  It  was  proved  that  the  defendant 
Kambo  cut  down  the  street,  and  destroyed  the  sewer.     He  proved  no 


Ch.  3)  LICENSES  337 

authority  from  the  township.  Against  him,  therefore,  a  right  of  action 
was  established,  and  the  judgment  in  his  favor  must  be  reversed,  and 
venire  de  novo  awarded.  As  there  was  not  a  scintilla  of  evidence  con- 
necting the  township  with  the  transaction,  the  judgment  in  its  favor 
must  stand.  If,  on  the  new  trial,  Rambo  can  justify  under  the  town- 
ship, questions  will  arise  not  open  for  present  discussion  in  this  cause.'' 

— ^'tS-  j       iC^  ^-^  V 

2iAec.:     Case  v.  Webor,  2  Ind.  lOS  (ISoO).     Compare  New  York  Steam  Co. 
V.  Foundation  Co..  195  N.  Y.  43,  87  N.  E.  765,  21  L.  R.  A.   (N.  S.)  470  (1909). 

A.  licensed  B.  to  dig  a  well  and  install  a  ram  on  A.'s  land.  B.  did  so. 
Later  part  of  A.'s  land  was  condemned,  and  the  part  where  the  well  and 
ram  were  was  lawfully  flooded.  Held,  B.  has  no  right  to  reimbursement 
against  the  condemning  party.  Clapp  v.  City  of  Boston,  133  Mass.  367  (1SS2). 
See,  also,  Warr  v.  Loudon  County  Council,  ante,  p.  313,  note  9;  Sabine  &  E. 
T.  Ry.  Co.  V.  Johnson,  65  Tex,  389  (18S6). 
Big. Rights — 22 


338  RIGHTS  IN   THE  LAND   OF  ANOTHER  (Part  2 


CHAPTER  IV 

LEGAL  ENFORCEMENT  OF  COVENANTS  RUNNING 
WITH  THE  LAND 


SECTION  1.— AS  BETWEEN  LANDLORD  AND  TENANT 
I.  Before"  the  Statute  of  32  Henry  VIII 


A  man  leases  a  house  and  land  for  years  and  the  lessee  covenants 
that  he  and  his  assigns  will  repair  the  house,  and  then  the  lessee  grants 
over  his  term  and  the  assign  does  not  repair;   action  of  covenant  lies 
against  the  assign,  _for.  this  is  a  covenant  which  runs  with  the  land ;  and 
it  also  clearly  lies  against  the  lessee  after  he  has  assigned  over  his 
term,  and  it  appears  that  if  the  lessor  brings  several  writs  of  covenant 
o     against  each,  there  is  no  remedy  until  he  takes  out  execution  against 
"^^  -^x/Xcx-^'  Qj^g  ^^^  |.j^gj^  jj.  appears  that  if  he  pro^eje^s  ^gain^t  the  other,  he  shall 
'  ■'" .,u.A^     '  have  Audita  querela ;  and  in  the  new  Natura  Breviiim  it  is  said  that  the 
assignee  shall  have  an  action  of  covenant  against  the  lessor  by  reason 
of  the  fact  that  the  assignee  is  mentioned  in  the  deed,  and  so  it  ap- 
pears reasonable  that  the  lessor  shall  have  an  action  of  covenant  against 
him:     and  H.  48  E.  3  the  assignee  of  the  lessee  shall  have  a  writ  of 
covenant  against  the  lessor  where  the  assign  was  not  named  in  the 
deed ;   quaere,  for  it  is  not  in  the  printed  report. 
Brook's  Abridgment,  Covenant,  32  (1533). 


*  *  *  The  better  opinion  seems  to  be  that  the  assignee  of  -the  re- 
version could  not  bring  an  action  of  covenant  at  common  law,  but  it 
is  given  by  the  statute  of  32  H.  8,  c.  34.     *     *     * 

*  *  *  The  action  of  debt  lay  for  the  assignee  of  the  reversion  at 
common  law ;  for  the  rent  being  incident  to  the  reversion,  and  the  les- 
see being  in  the  possession  of  the  lands  and  in  the  perception  of  the 
profits,  the  law  therefore  created  such  a  privity  between  them  as  would 
support  this  action  for  the  rent.  5  H.  7,  18b,  19a.  Bro.  Dette,  141. 
*  *  *  For  the  same  reason  of  privity  of  estate,  the  lessor  may  have 
debt  or  covenant  for  rent  or  for  not  repairing,  etc.,  against  the  assignee 
of  the  term  at  the  common  law.    5  H.  7,  19a. 

Williams'  Notes  (3  and  6)  to  Thursby  v.  Plant,  1  Saund.  237. 


Ch.  i)  LEGAL  ENFORCEMENT  OF  COVENANTS  339 

It  is  said  that  an  assignee  of  a  reversion  might  at  common  law  have 
maintained  an  action  of  covenant  for  anything  agreed  to  be  done  upon 
the  land  itself;^  and  Coke  was  of  opinion  that  an  assignee  of  the  re- 
version could  maintain  an  action  of  covenant  for  the  rent  at  common 
law,  for  the  rent  goes  with  the  reversion,  and  so  by  consequence  the 
covenant  also ;  ^  and  in  a  modern  case,  where  the  assignee  of  the  re- 
version brought  covenant  against  the  personal  representative  of  the 
lessee  upon  a  demise  of  land  for  years,  doing  suit  to  the  mill  of  the 
lessor  his  heirs  and  assigns,  by  grinding  all  such  corn  there  as  should 
grow  upon  the  land  demised,  which  was  held  to  amount  to  an  implied 
covenant  which  ran  with  the  land,  Mr.  Justice  Bay  ley  said,  that  an  ac- 
tion at  the  suit  of  the  assignee  of  the  reversion  was  maintainable  in 
some  cases  at  common  law,  in  others  under  the  statute  32  H.  8;  he 
rather  thought  this  case  belonged  to  the  former  class.^  But  speaking 
generally,  we  may  observe  that  at  common  law  the  action  of  covenant 
djd^not  lie  ,for  the  assignee  of  the  reversion.* 
""  Sugden,  V.  &  P.  (14th  Ed.)  p.  582,  par.  17. 


Perhaps  the  best  way  of  reconciling  the  case  is  by  considering  that 
at  common  law  covenants  ran  with  the  Lmd  but  not  with  the  reversion, 
therefore  the  assignee  of  the  lessee  was  held  to  be  liable  in  covenant, 
and  to  be  entitled  to  bring  covenant,  but  the  assignee  of  the  lessor  was 
not. 

Patterson's  note  (a)  to  Thursby  v.  Plant,  supra. 


II.  Under  the  Statute  of  32  Henry   VIII 

(A)  The  Statute 

St.  32  Hen.  VIII,  c.  34. — Where  before  this  time  divers,  as  well 
temporal  as  ecclesiastical  and  religious  persons,  have  made  sundry 
leases,  demises  and  grants  to  divers  other  persons,  of  sundry  manors, 
lordships,  ferms,  meases,  lands,  tenements,  meadows,  pastures, 'or  oth- 
er hereditaments,  for  term  of  life  or  lives,  or  for  term  of  years,  by 
writing  under  their  seal  or  seals,  containing  certain  conditions,  cove- 
nants and  agreements  to  be  performed,  as  well  on  the  part  and  behalf 
of  the  said  lessees  and  grantees,  their  executors  and  assigns,  as  on  the 
behalf  of  the  said  lessors  and  grantors,  their  heirs  and  successors ;  (2) 
and  forasmuch  as  by  the  common  law  of  this  realm,  no  stranger  to  any 

1  Bra-ker  v.  Daraer,  3  Mod.  338  (1GS9) ;  Wey  v.  Rally,  6  Mod.  194  (17U5). 

2  Alhowe  V.  Heming,  1  Kolle  R.  81  (1G15),  L'aulres  Justices  rient  disont  al 
cest  point. 

8  Vyvyan  v,  Arthur,  1  B.  &  C.  410  (1S23),  post,  p.  304. 

*  Earlier  v.  Darner,  ubi  supra ;  Tlirale  v.  Cornwall,  1  Wils.  165  (1747). 


340  ■   RIGHTS   IN   THE  LAND   OF  ANOTHER  (Part  2 

covenant,  action  or  condition,  shall  take  any  advantage  or  benefit  of 
the  same,  by  any  means  or  ways  in  the  law,  but  only  such  as  be  parties 
or  privies  thereunto,  by  the  reason  whereof,  as  well  all  grantees  of  re- 
versions, as  also  all  grantees  and  patentees  of  the  King  our  sovereign 
lord,  of  sundry  manors,  lordships,  granges,  ferms,  meases,  lands,  ten- 
ements, meadows,  pastures,  or  other  hereditaments  late  belonging  to 
monasteries,  and  other  religious  and  ecclesiastical  houses  dissolved, 
suppressed,  renounced,  relinquished,  forfeited,  given  up,  or  by  other 
means  come  to  the  hands  and  possession  of  the  King's  majesty  since 
the  fourth  day  of  February  the  seven  and  twentieth  year  of  his  most 
noble  reign,  be  excluded  to  have  any  entry  or  action  against  the  said 
lessees  and  grantees,  their  executors  or  assigns,  which  the  lessors  be- 
fore that  time  might  by  the  law  have  had  against  the  same  lessees  for 
the  breach  of  any  condition,  covenant  or  agreement  comprised  in  the 
indentures  of  their  said  leases,  demises  and  grants :  (3)  be  it  therefore 
enacted  by  the  King  our  sovereign  lord,  the  lords  spiritual  and  tem- 
poral, and  the  commons,  in  this  present  parliament  assembled,  and  by 
authority  of  the  same.  That  as  well  all  and  every  person  and  persons, 
and  bodies  politic,  their  heirs,  successors  and  assigns,  which  have  or 
shall  have  any  gift  or  grant  of  our  said  sovereign  lord  by  his  letters 
patents  of  any  lordships,  manors,  lands,  tenements,  rents,  parsonages, 
tithes,  portions,  or  any  other  hereditaments,  or  of  any  reversion  or  re- 
versions of  the  same,  which  did  belong  or  appertain  to  any  of  the  said 
monasteries,  and  other  religious  and  ecclesiastical  houses,  dissolved, 
suppressed,  relinquished,  forfeited,  or  by  any  other  means  come  to  the 
King's  hands  since  the  said  fourth  day  of  February  the  seven  and 
twentieth  year  of  his  most  noble  reign,  or  which  at  any  time  hereto- 
fore did  belong  or  appertain  to  any  other  person  or  persons,  and  after 
came  to  the  hands  of  our  said  sovereign  lord,  (4)  as  also  all  other  per- 
sons being  grantees  or  assignees  to  or  by  our  said  sovereign  lord  the 
King,  or  to  or  by  any  other  person  or  persons  than  the  King's  highness, 
and  the  heirs,  executors,  successors,  and  assigns  of  every  of  them,  (5) 
shall  and  may  have  and  enjoy  like  advantages  against  the  lessees  their 
executors,  administrators  and  assigns,  by  entry  for  nori-gayment^  of 
the  rent,  or  for  doing  oT  waste  or  other  forfeiture ;  (6)  and  also  shall 
and  may  have  and  enjoy  all  and  every  such  like,  and  the  same  advan- 
tage, benefit  and  remedies  by  action  only,  for  not  performing  of  other 
conditions,  covenants  or  agreements  contained  and  expressed  in  the  in- 
dentures of  their  said  leases,  demises  or  grants,  against  all  and  every 
the  said  lessees  and  farmers  and  grantees,  th6ir  executors  and  admin- 
istrators and  assigns,  as  the_jaid_lessors  or  grantors  themselves,  or 
their  heirs  or  successors,  ought,  should,  or  might  have  had  and  en- 
joyed at  any  time  or  times,  (7)  in  like  manner  and  form  as  if  the  re- 
version of  such  lands,  tenements  or  hereditaments  had  not  come  to  the 
hands  of  our  said  sovereign  lord,  or  as  our  said  sovereign  lord,  his 
heirs  and  successors,  should  or  might  have  had  and  enjoyed  in  certain 
cases,  by  virtue  of  the  act  made  at  the  first  session  of  this  present  par- 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  341 

lianient,  if  no  such  grant  by  letters  patents  had  been  made  by  his  High- 
ness. 

II.  Moreover  be  it  enacted  by  authority  aforesaid,  That  all  farmers, 
lessees  and  grantees  of  lordships,  manors,  lands,  tenements,  rents,  par- 
sonages, tithes,  portions,  or  any  other  hereditaments,  for  term  of  years, 
life  or  lives,  their  executors,  administrators  and  assigns,  shall  and  may 
have  like  action,  advantage  and  remedy  against  all  and  every  person 
and  persons  and  bodies  politic,  their  heirs,  successors  and  assigns, 
which  have  or  shall  have  any  gift  or  grant  of  the  King  our  sovereign 
lord,  or  of  any  other  person  or  persons,  of  the  reversion  of  the  same 
manors,  lands,  tenements,  and  other  hereditaments  so  letten,  or  any 
parcel  thereof,  for  any  condition,  covenant  or  agreement  contained  or 
expressed  in  the  indentures  of  their  lease  and  leases,  as  the  same  les- 
sees, or  any  of  them  might  and  should  have  had  against  the  said  les- 
sors and  grantors,  their  heirs  and  successors ;  (2)  all  benefits  and  ad- 
vantages of  recoveries  in  value  by  reason  of  any  warranty  in  deed  or 
in  law  by  voucher  or  otherwise  only  excepted.^ 

(B )  Forniolities  —^-i^^^cJ^C 

SPENCER'S  CASE. 

(Court  of  King's  Bench,  15S3.     5  Coke,  16a.)  « 

Spencer  and  his  wife  brought  an  action  of  covenant  against  Clark, 
assignee  to  J.,  assignee  to  S.,  and  the  case  was  such:  Spencer  and  his 
wife  by  deed  indented  demised  a  house  and  certain  land  (in  the  right 
of  the  wife)  to  S.  for  term  of  21  years,  by  which  indenture  S.  covenant- 
ed for  him,  his  executors,  and  administrators,  with  the  plaintiffs,  that 
he,  his  executors,  administrators,  or  assigns,  would  build  a  brick  wall 
upon  part  of  the  land  demised,  &c.  S.  assigned  over  his  term  to  J. 
and  J.  to  the  defendant;  and  for  not  making  of  the  brick  wall  the 
plaintiff  brought  the  action  of  covenant  against  the  defendant  as  as- 
signee :  and  after  many  arguments  at  the  Bar,  the  case  was  excellent- 
ly argued  and  debated  by  the  Justices  at  the  Bench ;  and  in  this  case 
these  points  were  unanimously  resolved  by  Sir  Christopher  Wray, 
Chief  Justice,  Sir  Thomas  Gawdy,  and  the  whole  Court.  And  many 
differences  taken  and  agreed  concerning  express  covenants,  and  cove- 
nants in  law,  and  which  of  them  run  with  the  land,  and  which  of  them 
are  collateral,  and  do  not  go  with  the  land,  and  where  the  assignee  shall 
be  bound  without  naming  him,  and  where  not ;  and  where  he  shall  not 
be  bound  although  he  be  expressly  named,  and  where  not. 

'■  The  substance  of  this  statute  is  geiierally  law  in  the  United  States,  ei- 
ther by  express  re-enactinent  or  as  a  part  of  our  common  law.  See  Sims, 
Covenants  Which  Run  with  the  Land,  Other  than  Covenants  for  Title,  p.  74 
and  fol. 

<»  I'art  of  the  opinion  is  omitted. 


^ 


342  RIGHTS   IN   THE   LAND  OF   ANOTHER  (Part  2 


A 


X. 


1.  When  the  covenant  extends  to  a  thing  in  essey;^parcel  of  the  de- 
mise, the  thing  to  be  done  by  force  of  the  covenant  is  quodammodo 
annexed  and  appurtenant  to  the  thing  demised,  and  shall  go  with  the 
land,  and  shall  bind  the  assignee  although  he  be  not  bound  by  express 
words :  but  when  the  covenant  extends  to  a  thing  which  is  not  in  being 
at  the  time  of  the  demise  made,  it  cannot  be  appurtenant  or  annexed 
to  the  thing-  which  hath  no  being ;  as  if  the  lessee  covenants  to  repair 
the  houses  demised  to  him  during  the  term,  that  is  parcel  of  the  con- 
tract, and  extends  to  the  support  of  the  thing  demised,  and  therefore  is 
quodammodo  annexed  appurtenant  to  houses,  and  shall  bind  the  as- 
signee although  he  be  not  bound  expressly  by  the  covenant ;  but  in  the 
case  at  Bar,  the  covenant  concerns  a  thing  which  was  not  in  esse  at 
the  time  of  the  demise  made,  but  to  be  newly  built  after,  and  there- 
fore shall  bind  the  covenantor,  his  executors,  or  administrators,  and 
not  the  assignee,  for  the  law  will  not  annex  the  covenant  to  a  thing 
which  hath  no  being. 

2.  It  was  resolved  that  in  this  case,  if  the  lessee  had  covenanted  for 
him  and  his  assigns,  that  they  would  make  a  new  wall  upon  some_part 
pf  the  thing  demised,  that  for  as  much  as  it  is  to  be  done  upon  the  land 
demised,  that  it  should  bind  the  assignee ;  for  although  the  covenant 
doth  extend  to  a  thing  to  be  newly  made,  yet  it  is  to  be  made  upon  the 
thing  demised,  and  the  assignee  is  to  talve  the  benefit  of  it,  and  there- 
fore shall  bind  the  assignee  by  express  words.  So  on  the  other  side, 
if  a  warranty  be  made  to  one,  his  heirs  and  assigns,  by  express  words, 
the  assignee  shall  have  a  warrantia  chartse.  F.  N.  B.  135,  &  9  E.  2, 
Garr'  de  Charters  30;  36  E.  3,  Garr.  1 ;  4  H.  8,  Dyer  1.  But  although 
the  covenant  be  for  him  and  his  assigns, j^etJJ  the  thing  to  be  done  be 
merely  coUatecal  to  the  land  and  doth  not  touch  or  concern  tEe'thmg 
demised  in  any  sort,  there  the  assignee  shall  not  be  charged^  As  if  the 
lessee  covenants  for  him  and  his  assigns  to  build  a  house  upon  the 
land  of  the  lessor  which  is  no  parcel  of  the  demise  or  to  pay  any  col- 
lateral sum  to  the  lessor,  or  to  a  stranger,  it  shall  not  bind  the  assignee, 
because  it  is  merely  collateral,  and  in  no  manner  touches  or  concerns 
the  thing  that  was  demised,  or  that  is  assigned  over ;  and  therefore  in 
such  case  the  assignee  of  the  thing  demised  cannot  be  charged  with  it, 
no  more  than  any  other  stranger.     *    *    * 

See  the  statute  of  32  H.  8,\C.  24,  34,  which  Act  was  resolved  to  ex- 
tend to  covenants  which  touch\or  concern  the  thing  demised  and  not  to 
collateral  covenants.^  /  ^"3^ 


7Acc.:     Brooks  v^   Smith,   Thomp.   Unrep.  Tenn.   Cas.   226    (ISGO). 

Contra:     Anon.   Moo.   159,  pi.  300    (1584). 

See  Hyde  v.  Windsor,  Cro.  Eliz.  552  (1597);  Smith  v.  Arnold,  3  Salk,  4 
(1703) ;  Bally  v.  Wells,  3  Wils.  25  (17G9). 

A.  leased  to  X.  and  covenanted  with  X.  and  his  assigns,  for  himself,  his 
executors  and  administrators,  to  pay  X.  or  his  assigns  the  value  of  any 
shrubbery  that  thoy  might  plant  on  the  leased  premises.  A.  assigned  to  B. 
who  refused  to  pay  X.  for  the  shrubbery  planted  by  X.     Held,  X.  has  uu 


Ch.  4)  LEGAL    ENFORCEMENT   OF   COVENANTS  343 

MASURY  V.  SOUTHWORTH  et  al. 
(Supreme  Court  of  Ohio,  1S59.     9  Ohio  St.  340.) 

In  Error  to  the  District  Court  of  Cuyahoga  County. 

The  plaintiff  in  error  brought  an  action  against  the  defendants  in 
error,  in  the  court  of  common  pleas  of  Cuyahoga  County.  The  peti- 
tion in  that  action  stated,  that  on  the  25th  day  of  February,  1854,  S.  A. 
Powers  and  Joseph  C.  Foster  executed  a  lease,  which  was  duly  ac- 
knowledged and  recorded.  By  this  lease,  a  lot  in  the  city  of  Cleveland 
was  demised  by  Powers  to  Foster,  for  a  term  beginning  on  the  1st  day 
of  Aprir,  1"8547  and  eiTdlhg  the  1st  day  of  July,  1867.  The  petition  al- 
leged "that,  by  one  of  the  covenants  in  said  lease,  the  said  Foster  was 
_toJ^££p_said_leasehold  premises  fully  insured  for  the  benefit  of  Pow- 
ers, and  that,  if  at  any  time  the  said  Foster  should  fail  to  keep  the 
same  so  insured,  that  the  said  Powers  might  cause  an  insurance  to  be 
made  on  said  premises  at  the  expense  of  said  Foster,  and  in  the  name 
and  for^he  benefit  of  said  Powers.  And  by  a  further  stipulation  in 
said  lease,  it  was  further  agreed  that,  in  case  that  said  building  should 
burn  down  during  the  continuance  of  said  lease,  that  the  said  Foster 
should  have  the  benefit  of  said  insurance  money  for  the  purpose  of  re- 
building said  premises,  in  case  he  should  elect  to  rebuild  the  same." 
The  petition  further  stated,  that  on  the  14th  of  October,  1854,  'Tow- 
ers assigned  and  sold  to  plaintiff  all  his  interest  in  said  lease;"  and 
"that  the  interest  of  Foster  in  said  premises  and  lease  was  sold  under 
an  order  of  court  to  satisfy  judgments  against  said  Foster,  and  that  the 
defendants  became  the  purchasers  of  said  Foster's  interest  in  said 
premises  at  said  sale.  It  is  also  stated,  that  the  defendants  went  into 
possession  of  the  said  premises;  that  at  the 'time  they  went  into  pos- 
session, a  policy  procured  by  Foster  was  running;  that  when  it  ex- 
pired the  plaintiff  notified  the  defendants  to  insure  the  premises,  which 

cause  of  action  against  B.  Grey  v.  Cuthbertson,  2  Chitty,  482  (17S5).  Ace: 
Hansen  v.  Meyer,  81  111.  321,  25  Am.   Eep.  282   (1876). 

"The  authorities  are  not,  however,  altogether  clear  upon  the  point  whether, 
although  the  obligation  of  the  covenant  will  not  bind  the  assignee  of  the 
land  or  the  reversion,  as  the  case  may  be,  where  the  assigns  are  not  named 
and  the  covenant  extends  to  a  thing  not  in  esse,  the  benefit  of  the  covenant 
will  not  pass  to  the  assignee  although  he  be  not  named.  But,  upon  prin- 
ciple, there  would  seem  to  be  no  distinction  between  the  burden  and  the 
benefit  in  the  application  of  the  rule,  the  mutuality  incident  to  the  contract 
requiring  that  the  one  should  not  be  separated  from  the  other ;  and  that  a 
party  who  is  not  bound  to  perform  an  agreement  should  not  be  entitled  to 
exact  performance."  Cooper,  Ch.,  in  Cronin  v.  Watkins,  1  Tenn.  Ch.  119, 
126  (1873). 

Where  the  covenant  relates  to  a  thing  not  in  esse,  the  principles  of  Spenc- 
er's Case  have  been  applied  to  an  action:  By  the  assignee  of  the  lessee 
against  the  lessor,  Thompson  v.  Rose,  8  Cow.  (N.  Y.)  266  (1828) ;  Cronin  v. 
Watkins  (supra) ;  by  the  assignee  of  the  lessee  against  the  assignee  of  the 
lessor,  Tallman  v.  Coftin,  4  N.  Y.  134  (1850) ;  Bream  v.  Dickerson,  2  Humph. 
(21  Tenn.)  126  (1840). 


6    -^  r7 


344  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

Jhejijieglected  and  refused. to  do.  The  amount  which  the  plaintiff 
claims  to  recover  is  what  it  had  cost  him  to  procure  an  insurance  on  the 
premises. 

The  lease  is  referred  to  as  a  part  of  the  petition.  It  states  that  the 
lease  of  the  lot  is  made  "at  and  for  the  rents  and  conditions  hereinafter 
specified;  to  have  and  to  hold  the  leased  and  demised  premises  upon 
the  terms  and  conditions  hereinafter  specified."  Among  the  terms 
and  conditions  so  specified  is  found  the  covenant  to  insure,  stated  in 
the  body  of  the  petition.  In  connection  with  that  covenant,  and  pre- 
ceding it,  was  one  that  the  lessee  "will  erect  upon  said  premises  a  good 
and  substantial  brick  building,  the  heighth  of  which  shall  be  equal  to 
that  of  the  building  on  Bank  street,  known,"  etc. ;  which  covenant  con- 
tained a  description  of  the  size  and  style  of  the  building,  and  the  use 
to  which  it  was  to  be  put — the  rooms  on  the  ground  floor  to  be  "used 
and  kept  for  storerooms,  during  the  continuance  of  this  lease."  It  is 
this  building,  by  the  terms  of  the  lease,  which  is  to  be  kept  fully  in- 
sured. 

To  the  petition  of  the  plaintiff,  the  defendants  filed  a  demurrer,  upon 
the  ground  that  it  did  not  contain  facts  sufficient  to  constitute  a  cause 
of  action. 

This  demurrer  was  sustained  by  the  court  of  common  pleas,  and 
judgment  entered  against  the  plaintiff. 

To  reverse  this  judgment  a  petition  in  error  was  filed  in  the  district 
court,  where  the  judgment  was  affirmed. 

To  reverse  the  judgment  of  affirmance  in  the  district  court,  upon 
leave  obtained,  a  petition  in  error  was  filed  in  this  court. 

Gholson,  J.^  In  consequence  of  the  rule  of  the  common  law,  that 
a  chose  in  action  was  not  assignable,  the  assignee  of  a  reversion  could 
not  maintain  an  action  upon  a  covenant  contained  in  a  lease,  against 
the  lessee,  though  the  covenant  might  run  with  the  land.  There  was 
a  distinction  made  betvv-een  the  assignee  of  the  reversion,  and  the  a's- 
signee  of  the  lease;  and  while  the  latter  might  maintain,  and  be  Ha- 
ble  to,  an  action  upon  such  a  covenant,  it  was  different  as  to  the  for- 
mer. To  remedy  this,  the  statute  of  32  H.  8,  cap.  34,  was  enacted, 
which  gave,  generally,  to  the  assignee  of  the  reversion  the  same  right 
of  "action  that  the  lessor  had,  upon  the  covenants  in  the  lease.  But 
this  statute  did  not  extend  to  mere  personal  and  collateral  covenants ; 
it  embraced  those  only  which  touched  and  concerned  the  thing  demi'sed. 

It  has  been  decided  by  this  court,  that  the  statute  of  32  H.  8,  cap. 
34,  is  not  in  force  in  this  state,  and  that  an  assignee  of  the  reversion 
cannot  maintain  an  action  upon  the  covenants  in  the  lease.^  But  if 
the  covenant  be  assignable  in  equity,  so  that  an  action  might  have  been 
maintained  in  the  name  of  the  assignor,  or  relief  obtained  by  a  suit  in 

8  Part  of  the  opinion  is  omitted. 

8  Compare  Newburg  v.  Weare,  44  Ohio  St.  604,  *9  N.  E.  S45  (1887). 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  345 

equity,  our  code  of  civil  procedure  operates  upon  the  remedy,  even 
more  extensively,  that  the  statute  of  32  H.  8,  cap.  34.  For  whether  the 
covenant  be  collateral,  or  inhere  in  the  land,  if  it  be  assigned,  the  as- 
signee not  only  may,  but,  as  the  party  beneficially  interested,  must  sue 
in  his  own. name.  For  example,  if  there  be  a  contract  by  a  lessee  to 
build  a  house  or  a  wall  upon  the  land,  at  any  time,  and  whether  to  be 
used  by  the  lessee  or  not,  the  lessor,  in  selling  the  reversion,  may  also 
assign  the  benefit  of  such  a  contract,  and  the  action  of  the  assignee 
for  a  breach  would,  under  the  code,  be  in  his  own  name. 

In  the  present  action,  it  may  be  inferred  from  the  pleadings  that 
the  lessor.  Powers,  has  assigned  to  the  plaintiff  the  covenant  to  keep 
the  house  insured  for  the  benefit  of  the  lessor  and  lessee.  This  cove- 
nant Powers  might  well  assign ;  and  the  plaintiff,  being  the  assignee 
of  the  reversion,  and  entitled  also  to  the  benefit  of  the  covenant,  might 
bring  an  action  for  its  breach,  in  his  own  name,  against  the  lessee  of 
Powers.  But  does  this  right  of  action  extend  to  the  assignee  of  the 
lessee  ?  It  may  be,  that  the  lessee  would  be  liable  on  the  covenant,  but 
not  the  assignee  of  the  lessee.  There  is  a  manifest  difference  between 
assigning  a  right  of  action,  and  creating,  by  assignment,  a  liability  to 
an  action.  The  latter  must,  generally,  assume  the  shape  of  a  contract 
to  indemnify,  and  could  not  usually  affect  the  rights  of  the  party  hold- 
ing the  original  claim.  It  would  be  really  a  new  contract,  and  not  in 
the  nature  of  an  assignment  of  another  contract.  In  this  view  of  the 
liability  of  an  assignee  of  the  lease  to  the  assignee  of  the  reversion  the 
principle  governing  the  assignment  of  a  chose  in  action,  or  the  bene- 
fit of  a  covenant,  must  be  thrown  out  of  view,  and  the  inquiry  be  made 
on  other  principles  and  considerations. 

The  covenant  must  run  with  the  land — must  be  so  connected  with, 
be  attached  to,  and  inhere  in  the  land,  that  the  assignee  of  the  rever- 
sion or  the  assignee  of  the  lease,  as  the  case  may  be,  would  have  a 
right  to  the  advantage  of  it,  or  be  bound  to  perform  it.  Such  is  the 
general  principle ;  but  whether  a  covenant  so  runs  with  the  land,  must 
depend,  in, the  first  place,  upon  the  nature  and  character  of  the  par- 
ticular covenant  and  of  the  estate  demised,  as  connected  with  the  re- 
spective rights  of  lessor  and  lessee  in  reference  to  the  subject-matter 
of  the  covenant ;  and,  in  the  next  place,  upon  the  intent  of  the  parties 
in  the  creation  of  the  estate,  as  shown  by  the  language  of  the  instru- 
ment creating  it,  construed  with  reference  to  the  relative  position  of 
the  parties,  and  to  the  subject-matter  to  which  their  contract  and  con- 
veyance is  to  be  applied.  The  nature  and  character  of  the  covenant 
may  be  such,  that  it  may  run  with  the  land ;  and  yet,  if  it  be  clearly 
the  agreement  of  the  parties  that  it  shall  not  so  run,  it  would  not  be  an- 
nexed, in  spite  of  the  agreement  so  expressed.  And,  on  the  contrary, 
however  clearly  and  strongly  expressed  may  be  the  intent  and  agree- 
ment of  the  parties,  that  the  covenant  shall  run  with  the  land,  yet,  if 
it  be  of  such  a  character  that  the  law  does  not  permit  it  to  be  attached. 


346  RIGHTS  IN  THE   LAND  OF  ANOTHER  (Part  2 

it  cannot  be  attached  by  the  agreement  of  the  parties,  and  the  assignee 
would  take  the  estate  clear  of  any  such  covenant. 

From  this  view)  it  is  obvious  that,  as  to  the  first  point,  the  nature  and 
character  of  a  covenant  which  may  inhere  in  the  land,  we  are  to  look 
at  the  reason  and  policy  of  the  law ;  and,  as  to  the  second  point,  wheth- 
er it  does  so  inhere  as  to  give  a  right  and  create  an  obligation  in  the 
case  of  assignees,  we  must  look  at  the  intent  of  the  parties  creatirig 
Jhe  estate.  The  law  must  say  that  it  may  inhere,  and  the  parties_must 
say  that  it  shall  inhere.  *  *  *  [Tn^court  held  that  the  covenant 
was  of  such  a  character  that  it  might  be  made  to  run  with  the  land.] 

The  second  point  is  one  which,  in  its  application  to  the  present  case, 
in  view  of  the  decisions  and  dicta  in  England  and  in  this  country,  pre- 
sents considerable  difficulty.  When  any  effect,  such  as  to  pass  an  es- 
tate or  create  an  obligation,  is  dependent  upon  the  intent  of  parties  as 
expressed  in  a  writing,  it  is  an  important  inquiry  whether  the  law  has 
prescribed  certain  words  or  expressions  as  essential  to  be  used  to  in- 
dicate that  intent.  If  it  be  so,  those  words  must  be  used,  and  none 
others  will  suffice.  The  word  "heirs,"  in  the  case  of  a  conveyance  to 
create  an  estate  in  fee  simple,  is  an  instance.  But  where  the  law  has 
prescribed  no  such  words,  then  the  intent  of_the  parties  must  be  ascer- 
tained from  the  whole  instrument,  interpreted  and  construed  by  just 
and  proper  rules.  In  the  latter  class  of  cases,  as  a  general  rule,  wheth- 
er the  intent  be  very  clearly  and  plainly  expressed,  or  be  ascertained 
after  some  difficulty  by  the  rules  of  construction,  can  make  no  differ- 
ence. It  is  not  a  question  of  degree.  The  intent  is  either  expressed 
or  it  is  not,  and  the  effect  is  the  same  without  reference  to  the  degree 
of  clearness. 

In  determining  whether  a  particular  covenant  was  intended  to  run 
with  the  land,  the  fact  that  its  particular  subject-matter  was  not  in  ex- 
istence at  the  time  the  estate  was  created,  is  undoubtedly  very  impor- 
tant and  material,  and  in  many  instances  might  be  regarded  as  a  con- 
trolling consideration.  In  such  a  case,  though  the  subject-matter  be 
^connected  with  the  land,  as  a  house  or  wall  to  be  built  upon  it  at  a  fu- 
ture day  during  the  term,  yet  if  nothing  more  appeared  to  indicate 
the  intent,  it  might  be  regarded  as  a  personal  covenant,  and  not  running 
with  the  land.  If,  however,  an  intent  be  shown  that  the  covenant  shall 
run  with  the  land,  by  binding  the  "assigns"  in  so  many  words,  then 
the  covenant  does  run  with  the  land,  and  the  assignee  of  the  lease  is 
bound.  Thus  it  was  resolved,  in  the  leading  case  upon  this  subject: 
"If  the  lessee  had  covenanted  for  him  and  his  assigns  that  they  would 
make  a  new  wall  upon  some  part  of  the  thing  demised,  that  forasmuch 
as  it  is  to  be  done  upon  the  land  demised,  that  it  should  bind  the  as- 
signee ;  for  although  the  covenant  doth  extend  to  a  thing  to  be  newly 
made,  yet  is  to  be  made  upon  the  thing  demised,  and  the  assignee  is  to 
take  the  benefit  of  it,  and  therefore  shall  bind  the  assignee  by  express 
words."    Spencer's  Case,  5  Coke,  16b. 


JL- 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  347 

In  the  first  resolution  of  the  same  case  it  had  been  said :  "When  the 
covenant  extends  to  a  thing  in  esse,  parcel  of  the  demise,  if  the  thing 
to  be  done  by  force  of  covenant  is  in  any  manner  annexed  and  appur- 
tenant to  the  thing  demised,  it  shall  go  with  the  land  and  bind  the  as- 
signee, although  he  be  not  bound  by  express  words ;  but  where  the  cov- 
enant extends  to  a  thing  which  is  not  in  being  at  the  time  of  the  demise 
made,  it  cannot  be  appurtenant  or  annexed  to  the  thing  which  hath  no 
being."  And  it  was  further  said  as  to  the  case  at  bar :  '"The  covenant 
concerns  a  thing  (a  wall)  which  was  not  in  esse  at  the  time  of  the  de- 
mise made,  but  to  be  newly  built  after,  and  therefore  shall  bind  the 
covenantor,  his  executors  and  administrators,  and  not  the  assignee,  for 
the  law  will  not  annex  the  covenant  to  a  thing  which  hath  no  being." 

Between  the  first  and  second  resolutions  in  Spencer's  Case,  there  is 
an  apparent  inconsistency,  and  the  unsatisfactory  character'^F  the  sec- 
ond resolution  has  been  a  subject  of  remark  and  comment.  In  the  first 
resolution  it  seems  to  be  considered  that  the  law  will  not  permit  such 
a  covenant  as  the  one  under  consideration — a  covenant  to  build  a  wall 
upon  the  land  demised — to  be  annexed  to  the  estate  and  run  with  the 
land.  And  if  this  be  so,  on  the  ground  that  it  is  to  be  regarded  as  a 
collateral  covenant,  not  proper  to  be  annexed  to  the  land,  then  the 
^conctusion  part  of  the  second  resolution  shows  that  the  agreement  of 
the  parties,  whether  expressed  by  the  word  "assigns,"  or  otherwise, 
could  not  make  it  a  covenant  running  with  the  land  and  binding  upon 
the  assignee.  Yet,  in  the  second  resolution,  it  is  said,  of  a  supposed 
case,  if  the  lessee  had  covenanted  for  him  and  his  assigns,  it  would 
bind  the  assignee  by  express  words :  and  thus  showing,  apparently,  in 
a  case  in  which  it  had  been  before  said,  that  the  covenant  could  not  be 
appurtenant  or  annexed  to  the  land,  that  the  parties  might  make  it  so. 
It  is  to  be  observed,  however,  that  in  the  second  resolution  an  element 
is  introduced,  not  found  in  the  statement  of  the  case  in  the  first  resolu- 
tion, viz. :  That  the  building  of  the  wall  would  be  beneficial  to  the 
estate  demised,  and  the  assignee  would  have  the  benefit  of  it.  The  re- 
sult, then,  would  be,  that  if  the  thing  to  be  done  upon  the  land,  though 
not  existing  at  the  time  of  the  demise,  would  be  of  a  permanent  nature, 
connected  with  the  use  and  enjoyment  of  the  land,  and  beneficial  to 
the  assignee,  an  intent  that  it  should  run  with  the  land  and  bind  the 
assignee,  sho\yn  by  naming  him  in  the  deed,  would  be  effectual. 

Thus  understood,  the  two  resolutions  are  not  inconsistent,  and  there 
may  have  been  some  omission  in  expressing  the  second  resolution 
which  has  led  to  the  apparent  inconsistency.  The  question  then  arises, 
whether  an  intent  to  bind  the  assignee,  in  the  case  of  such  a  covenant, 
may  be  effectual  without  the  word  "assigns?"  Whether  that  word  is 
used  in  the  technical  sense,  and  cannot  be  supplied  by  other  words. 
If,  for  example,  in  the  case  stated,  instead  of  "for  him  and  his  assigns," 
it  was  3aid  "for  him  and  any  other  person  or  persons  to  whom  the 
estate  demised  shall  be  conveyed,''  or  other  equivalent  words. 


348  RIGHTS    IN   THE   LAND   OF   ANOTHER  (Part  2 

Our  conclusion  is,  that  the  word  "assigns"  is  not  used  in  a  techni- 
cal sense  and  as  the  only  word  appropriate  for  the  purpose,  but  that 
equivalent  words,  or  any  clear  manifestation  of  intent  will  suffice.  We 
think  the  real  question  must  be,  the  covenant  being  one  which  may  be 
annexed  to  the  estate  and  run  with  the  land,  whether  such  was  the 
intention  of  the  parties,  as  expressed  in  the  deed.  The  important  con- 
sideration is,  whether  the  covenant  is  annexed  to  the  estate  and  runs 
with  the  land.  If  this  be  so,  the  rights  and  liabilities  of  those  who  take 
the  estate  and  possess  the  land  during  the  term,  flow  from  a  privity 
of  estate,  and  not  from  any  assignment  of  right  or  contract.  If  the 
covenant  cannot,  or  (iocs  not,  run  with  the  land,  no  words  of  assign- 
ment can  create  a  privity  of  estate;  if  a  privity  of  estate  be  created, 
no  words  of  assignment  are  necessary.  The  word  "assigns"  could 
only  show  that  the  covenant  was  intended  to  run  with  the  land,  for  if 
the  covenant  were  otherwise  attached  to  the  land  and  the  privity  of 
estate  created,  as  in  the  ordinary  case  of  covenant  to  repair,  that  word 
is  shown  by  all  the  authorities  not  to  be  requisite  to  bind  the  assignee 
of  the  lease. 

Upon  the  principle  and  authority,  "the  law  does  not  require  any 
particular  form  of  words  to  constitute  such  a  covenant  which  shall  run 
with  the  land."  Trull  v.  Eastman,  3  Mete.  (Mass.)  121-124  (37  Am. 
Dec.  126).  "Any  words  in  a  deed,  which  show  an  agreement  to  do  a 
thing,  make  a  covenant."  Williams  v.  Burrell,  1  M.,  G.  &  S.  402^29 ; 
Comyn's  Dig.  Tit.  Covenant.  "To  charge  a  party  with  a  covenant,  it 
is  not  necessary  that  there  should  be  express  words  of  covenant  or 
agreement.  It  is  enough  if  the  intention  of  the  parties  to  create  a  cov- 
enant be  apparent.  Wolveridge  v.  Steward,  3  M.  &  S.  561  (30  E.  C. 
Iv.  312);  Courtenay  v.  Taylor,  6  M.  &  G.  851;  Williams  v.  Burrell, 
1  C.  B.  402-430;  Great  N.  Railway  Co.  v.  Harrison,  12  C.  B.  576- 
609 ;  Savage  v.  Mason,  3  Cush.  (Mass.)  500-505. 

In  the  present  case,  that  the  covenant  to  keep  the  building  fully  in- 
sured, was  intended  to  accompany  the  estate  in  the  event  of  any  as- 
signment, is,  we  think,  shown  as  well  by  the  immediate  object  in  view 
as  by  the  language.  The  land  demised  was  a  vacant  lot  to  be  rendered 
more  productive  and  valuable  by  an  improvement  corresponding  with 
those  on  other  lots  in  the  neighborhood.  It  was  to  be  improved  with 
a  view  to  permanent  and  continuous  business — the  rooms  were  to  be 
kept  and  used  for  stores.  That  the  lot  might  lie  unimproved,  or  the 
building  after  its  erection  be  burned  and  not  be  rebuilt,  either  by  les- 
sor or  lessee,  was  never  contemplated  by  the  parties.  The  language  in 
the  instrument  is,  that  the  lease  was  made  "at  and  for  the  rents  and 
conditions"  specified ;  and  it  was  to  be  held  "upon  the  terms  and  con- 
ditions" expressed.  We  feel,  therefore,  authorized,  for  the  reasons 
given  and  for  others  on  which  it  is  not  necessary  to  enlarge,  to  use  an 
expression  of  the  American  annotators  on  Spencer's  case,  and  say,  that 
the  covenant  to  insure  in  this  case  did  not  relate  solely  to  something  not 


Ch.  4)  LEGAL    ENFORCEMENT   OF   COVENANTS  349 

in  esse  at  the  time  it  was  made,  but  related  to_thgJ,3Lmi.SD  directly  and 
in  such  manner  that  it  may  bind  an  assignee jDf_ldieJ[esseev.. J.  Smith's 
Leading  Cases,  Am.  Ed.,  177.    *    *    * 
Judgment  reversed.^" 


PURVIS  V.  SHUMAN. 

(Supreme  Court  of  Illinois,  1916.     273  111.  286,  112  N.  E.  679,  L.  R.  A.  1917A, 
121,  Ann.  Cas.  191SD,  1175.) 

Cartwright,  J.^^  The  appellant,  Lawrence  Purvis,  filed  his  dec- 
laration in  this  case  in  the  circuit  court  of  Moultrie  county  against  the 
appellee,  Irving  Shuman,  grantee,  of _the  reversion  in  premises  leased 
to  the  appellant  by  Sam  T.  Miller,  to  recover  from  the  appellee  75  per 
cent,  of  the  cost  of  improvements  placed  on  the  leased  premises  by  vir- 
tue  of  a  covenant  of  the  lessor  contained  in  the  lease.  The  court  sus 
taine3~a  demurrer  to  the  declaration  and  rendered  judgment  against 
the  appellant  for  costs.  An  appeal  was  taken  to  the  Appellate  Court 
for  the  Third  District,  where  the  judgment  was  affirmed  and  a  certifi- 
cate of  importance  and  a  further  appeal  were  allowed. 

The  facts  alleged  in  the  declaration  and  admitted  by  the  demurrer 
are  as  follows :  On  April  9,  1907,  Sam  T.  Miller,  owner  of  the  north 
half  of  the  northwest  quarter  of  the  southeast  quarter  of  section  1, 
town  13,  range  5,  in  Moultrie  county,  leased  the  same  to  the  plaintift' 
from  March  1,  1907,  to  March  1,  1912,  at  a  rental  of  $200  per  annum. 
It  was  agreed  that  the  plaintiff  should  not  sublet  the  premises  without 
the  consent  of  the  lessor,  and  the  lease  contained  the  following  provi- 
sions : 

"It  is  furtlier  mutually  agreed  between  the  parties  hereto  that  the 
party  of  the  second  part  has  leased  said  premises  as  an  amusement  park, 
and  that  the  party  of  the  second  part  is  entitled  to  all  rents  and  privi- 
leges that  he  may  be  able  to  receive  from  the  parties  desiring  to  use 
the  same  for  a  ball  park,  race  meetings  or  other  similar  forms  of 
amusement.  It  is  further  agreed  between  the  parties  hereto  that  any 
and  all  improv^ements_^that  may  be  put  on  said  premises  by  the  party  of 
the  second  part  for  the  purpose  of  carrying  out  the  provisions  of  tliis 
lease  will  at  the  expiration  of  this  lease  be  purchased  by  the  party  of 
the  first^ part  at. seventy-five  per  cent,  of  the  original  cost  of  said  im- 
provements. *  *  *  f  he  covenants  herein  shall  extend  to  and  be 
binding  upon  the  heirs,  executors  and  administrators  of  the  parties  to 
this  lease." 

The  lease  was  recorded,  and  the  plaintiff  took  possession  and  con- 
structed the  improvements  for  the  purpose  of  carrying  out  the  provi- 
so Ace:     Frederick   v.  Callahan,  40  Iowa,  311    (1875);    Ecke  v.   Fetzer,  65 
Wis.  55.  26  N.  W.  266   (1886) ;  Hunt  v.  Danforth,  2  Curt.  592,  Fed.  Cas.  No. 
6SS7  (1S5G). 

11  Part  of  the  opinion  is  omitted. 


350  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

sions  of  the  lease  that  the  premises  should  be  used  for  an  amusement 
park,  and  the  improvements  cost  $8,255.95.  During  the  term,  on  Au- 
gust 10,  1909,  Sam  T.  Miller,  the  lessor,  having  platted  the  premises 
into  lots,  sold  and  conveyed  a  portion  to  the  defendant  and  another 
portion  to  the  defendant  and  D.  L.  Enslow,  and  on  January  3,  1910, 
Enslow  conveyed  all  his  interest  to  the  defendant.  On  March  1,  1912, 
the  defendant  notified  the  plaintiff  that  he  was  the  owner  of  the  prem- 
ises and  requested  the  plaintiff  to  remove  the  improvements.^  The 
plaintiff  refused  to  comply  with  the  request,  and  demanded  from  the 
defendant  75  per  cent,  of  the  original  cost  of  the  improvements,,  whicli 
the  defendant  refused  to  pay.  Afterward  the  defendant  obtained  a 
judgment  against  Sam  T.  Miller,  the  lessor,  caused  an  execution  to  be 
issued  and  levied  upon  the  improvements  as  the  property  of  Miller  and 
sold  them  by  virtue  of  the  execution.  The  Appellate  Court  was  of  the 
op_inionJ:hat,  the  improvements  not  being  in  existence  at  the  time  the 
lease  was  executed,  tlie  covenant  of  Miller  to  pay  at  the  termination 
oFthe  lease  75  per  cent,  of  their  original  cost  was  personal  and  col- 
lateral to  the  demise,  and  did  not  run  with  the  land  so  as  to  bind  the 
grantee  of  the  lessor,  under  the  decision  in  Spencer's  Case,  5  Coke,  16 
(1  Smith's  L.  C.  145),  and  subsequent  cases  following  that  one.  The 
decision  of  this  case  will  turn  upon  the  question  whether  that  view  of 
the  law  was  correct. 

The  statutory  provision  giving  lessees  a  right  of  action  against  gran- 
tees of  the  reversion  is  section  15  of  chapter  80  of  the  Revised  Stat- 
utes of  1874,  relating  to  landlord  and  tenant,  and  is  as  follows : 

"The  lessees  of  any  lands,  their  assigns  or  personal  representatives, 
shall  have  the  same  remedy,  by  action  or  otherwise,  against  the  lessor, 
his  grantees,  assignees  or  his  or  their  representatives,  for  the  breach 
of  any  agreement  in  such  lease,  as  such  lessee  might  have  had  against 
his  immediate  lessor:  Provided,  this  section  shall  have  no  application 
to  the  covenants  against  incumbrances,  or  relating  to  the  title  or  pos- 
session of  the  premises  demised." 

The  previous  statute,  included  among  those  adopted  as  the  law  of 
this  state,  was  enacted  in  the  thirty-second  year  of  the  reign  of  Henry 
VIII  (St.  32  Henry  VIII,  c.  34).  *  *  *  That  section  [the  second 
section  of  32  Henry  VIII,  c.  34]  provided  that  all  lessees  should  have 
the  same  rights  and  remedies  against  the  grantees  of  the  reversion  as 
they  might  have  had  against  the  lessors,  and  section  15  of  our  statute 
is  a  substantial  re-enactment  of  section  2  of  the  former  statute.  *  *  * 

In  the  case  of  Hansen  v.  Meyer,  81  111.  321,  25  Am.  Rep.  282,  the 
suit  was  brought  to  recover  damages  for  the  breach  of  a  covenant  of 
the  lessor  to  buy  from  the  lessee,  at  a  reasonable  price,  counters  and 
-shelving  to  be  put  in  a  storeroom  on  the  first  floor  of  a  hotel  building 
by  the  lessee.  The  court  cited  Spencer's  Case,  and  held  that  the  gran- 
tee of  the  lessor  was  not  bound  because  the  counters  and  shelving  were 
not  in  esse  and  had  not  yet  become  a  part  of  the  land  when  the  lease 
was  made.     The  appellant  claimed  a  right  to  maintain  the  action  un- 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  351 

der  section  15  of  our  statute,  before  referred  to,  but  the  court  declined 
to  consider  that  question  because  the  statute  was  enacted  after  the 
lease  was  executed.  It  does  not  appear,  however,  that  tliere  was  any 
restriction  upon  the  use  of  the  premises  which  required  counters  and 
shelving,  or  that  they  were  necessary  to  the  enjoyment  of  the  lease- 
hold estate.  The  court,  therefore,  did  not  consider  that  question  and 
the  case  came  exactly  within  the  first  resolution  in  Spencer's  Case. 

Neither  the  Hansen  Case  nor  Spencer's  Case  is  authority  for  the 
doctrine  that  if  the  lessee  is  restricted  to  a  particular  use  of  the  lands 
demised,  requiring  improvements  without  which  the  land  could  not  be 
used  for  the  special  purpose,  a  covenant  relating  to  such  improvements 
does  not  run  with  the  land  and  bind  assigns  not  expressly  named.  The 
covenant  in  this  case  did  directly  affect  the  mode  of  enjoying  the  lea^je.-,. 
hold  estate  which  could  not  be  otherwise  enjoyed.  Surely  such  a  cpyg- 
nant  is  annexed  to  the  land  itself  and  the  privity  of  estate  which  is  the 
foundation  .of  the  running  of  covenants  with  the  land  is  present.  The 
improvements,  when  made,  would  not  only  tend  to  the  support  of  the 
thing  demised,  but  would  be  essential  to  its  use.  The  provisions  of  the 
lease  amounted  to  an  express  covenant  not  to  use  the  premises  for  any 
other  purpose  than  as  an  amusement  park.  The  naked  land  without 
the  improvements  could  not  be  used  for  that  purpose,  and  the  lessee 
agreed  to  create  the  very  thing  which  would  enable  him  to  use  the  land 
for  the  specified  purpose.  Stalls,  paddocks,  seats  for  the  people,  stands 
for  the  judges,  fences  with  gates,  offices  for  the  sale  of  tickets,  and 
other  improvements,  were  absolutely  essential  to  effect  the  purpose  of 
the  lease  and  to  give  the  lessee  the  benefit  of  it.  The  grantee  to 
Miller  unquestionably  had  a  right  to  enforce  the  covenant  of  the  lease 
that  the  premises  should  be  used  for  an  amusement  park,  and  having 
the  benefits  of  the  covenant  the  burden  and  benefit  ran  together  with 
the  land.  The  defendant,  as  grantee  of  the  reversion,  might  have  en- 
forced against  an  assignee  of  the  plaintiff  the  provision  of  the  lease 
that  the  demised  premises  should  be  used  for  an  amusement  park,  and 
such  use  necessitated  the  making  of  the  improvements.  The  mutual 
covenants  related  to  the  manner  of  use  and  enjoyment  of  thej)rernises, 
and  were  inherent  in  the  demise,  and  not  personal  or_  collat^^l.  _ 
Whether  there  was  ever  any  rational  ground  for  a  distinction  between 
things  which  are  or  are  not  in  esse  when  the  covenant  is  made  where 
they  do  not  concern  the  use  and  enjoyment  of  the  demised  premises, 
there  certainly  is  none  where  the  covenant  directly  concerns  such  use 
and  enjoyment. 

The  judgments  of  the  Appellate  Court  and  circuit  court  are  reversed, 
and  the  cause  is  remanded  to  the  circuit  court. 

Reversed  and  remanded.^-  TS^lC'. 

12  Covenant  against  the  assignee  of  a  lessee  "on  a  demise  to  the  lessee, 
his  executors,  administrators,  and  assigns,  in  consideration  of  tlie  rents  and 
covenants  on  tlie  part  and  behalf  of  tlie  lessee  and  his  assigns  to  be  paid, 
done,  and  performed,  of  a  messuage  and  lands,   with  liberty  to  the  lessee, 


352  BIGHTS   IN  THE  LAND   OF  ANOTHER  (Part  2 

(C)  What  Covenants  Run 
(a)  Covenants  by  the  liESSEB 

COCKSON  V.  COCK. 
(Court  of  King's  Bench,  1606.     Cro.  Jac.  125.) 

Covenant  against  the  defendant  as  the  assignee  of  Dalton ;  for  that 
upon  an  indenture  of  demise  Dalton  covenanted  for  himself,  his  execu- 
tors, and  administrators,  to  leave  fifteen  acres  every  year  for  pasture 
absque  cultura ;  and  that  he  granted  his  estate  to  the  defendant,  and- 
that  the  defendant  non  reliquit  quindecim  acras  ad  pasturanv,  but  such 
a  day  and  year  j)loughed  up  all.  And  upon  this  count  it  was  demurred, 
because  the  assignee  not  being  named,  it  is  not  any  covenant  which 
shall  bind  the  assignee,  for  it_is  collateral. 

But  all  the  Court  held,  that  this  covenant  is  to  be  performed  by  the 
assignee,  although  he  be  not  named ;  because  it  is  for  the  benefit  of 
the  estate,  according  to  the  nature  of  the  soil;  but  to  perform  a  col- 
lateral covenant,  as  to  build  de  novo,  or  such  like,  shall  not  bind  him, 
unless  named.    Wherefore  it  was  adjudged  for  the  plaintiff.^ ^ 

his  executors,  administrators,  and  assigns,  to  make  any  erections  or  build- 
ings. The  lessee  covenanted  for  himself,  his  heirs,  executors,  and  admin- 
istrators (not  saying  assigns),  *  *  *  that  he,  his  executors  or  adminis- 
trators, would  repair  the  messuage  and  farm,  outhouses,  barns,  stable,  and 
all  other  erections  and  buildings  vrhich  should  or  might  be  thereafter  erect- 
ed, *  *  *  and  the  same  being  so  repaired,  he,  the  lessee,  his  executors, 
administrators,  and  assigns,  at  the  end  of  the  term  would  yield  up.  Tliere 
was  a  breach  alleged,  in  non-repair  and  not  yielding  up  in  repair.  The  third 
plea  was  pleaded  to  a  part  of  this,  viz.,  to  so  much  as  complained  in  respect 
of  a  water  corn-mill,  cottages,  and  other  buildings  erected  and  built  during 
the  term,  and  showed  that  they  were  buildings  erected  during  the  term,  and 
not  erected  in  place  of  others  previously  existing."  The  court  per  Pollock,  C. 
B.,  held  the  defendant  liable,  saying:  "In  the  present  case  we  think  it  suf- 
ficient to  say,  that  as  the  covenant  is  not  a  covenant  absolutely  to  do  a  new 
thing,  but  to  do  ^something  conditionally,  viz.,  if  there  are  new  buildings,  to 
repair  them ;  as  when  built  they  will  be  part  of  the  thing  demised,  and  subse- 
quently the  covenant  extends  to  its  support,  and  as  the  covenant  clearly  binds 
the  assignee  to  repair  things  in  esse  at  the  time  of  the  lease,  so  does  it  also 
those  in  posse,  and  consequently  the  assignee  is  bound.  There  is  only  one 
covenant  to  repair;  if  the  assignee  is  included  as  to  part,  why  not  as  to 
"  all?  On  these  grounds  we  think  the  third  plea  bad."  Minshull  v.  Oakes,  2 
Hurl.  &  N.  793  (1S58). 

See,  also,  Conover  v.  Smith,  17  N.  J.  Eq.  51,  S6  Am.  Dec.  247  (1864). 

Cases  dealing  with  the  question  as  to  whether  a  covenant  to  pay  for  im- 
provements reiates  to  a  thing  not  in  esse  are  collected  in  a  note, to  Willcox 
V.  Kehoe,  4  L.  R.  A.  (N.  S.)  466  (1905). 

13 Ace:  Covenant  to  reside  on  the  land,  Tatem  v.  Chaplin,  2  H.  Bl.  V6'd 
(179.3) ;  to  sink  oil  wells  in  the  land,  Bradford  Oil  Co.  v.  Blair,  113  Pa.  83, 
4  Atl.  218,  57  Am.  Rep.  442  (1886). 

The  following  covenants  have  been  held  enforceable:  By  the  assignee  of 
the  lessor  against  the  lessee — to  deliver  up  the  premises  in  good  condition, 
Matures  v.  Westwood,  Cro.  Eliz.  599  (1598);  Shelby  v.  Hearne,  6  Yerg  (14 
Tenn.)  512  (1834) ;  to  use  on  the  premises  all  manure  produced  thereon, 
Chapman  v.  Smith,  [1907]  2  Ch.  97.     By  the  assignee  of  the  lessor  against 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  353 

MAYOR,  ETC.,  OF  CONGLETON  v.  PATTISON  et  al. 
(Court  of  King's  Bench,  1S08,     10  East,  130.) 

The  plaintiffs  declared  in  covenant  upon  an  indenture,  made  the  23d 
November,  1752,  whereby  they  demised  to  John  Cla}';ton  a.  piece  of 
ground  in  Congleton,  called  the  Byflat,  and  a  certain  slip  of  land, 
throug;h  which  a  watercourse  was  intended  to  be  made,  with  liberty 
for  making  and  repairing  the  same,  and  with  liberty  for  Clayton,  his 
executors,  administrators,  or  assigns,  to  erect  in  the  Byflat  a  silk  mill, 
&c.  habendum,  the  said  piece  of  grounci  and  premises,  &c.  to  Clayton, 
his  executors,  administrators,  and  assigns,  for  300  years  from  the  date 
of  the  indenture ;  yielding  and  paying,  as  therein  mentioned.  And 
Clayton  covenanted  for  himself,  his  executors,  administrators,  and  as- 
signs, with  the  corporation,  that  he,  his  executors,  &c.  would  at  all 
times  during  the  term,  before  any  persons  should  be  received  as  serv- 
ants, workmen,  or  apprentices,  in  such  silk,  mill,  give  notice  of  their 
names  to^'flie' town-clerk  of  the  borough  for  the  time  being;  and  if  he 
should  immediately  give  satisfactory  information  to  Clayton,  his  ex- 
ecutors, &c.  or  to  the  then  owner  or  occupier  of  .the  silk  mill,  that 
any  of  the  persons  in  such  notice  were  legally  settled  in  any  other 
parish  or  township,  and  not  in  Congleton,  then  they  should  not  be  re- 
ceived to  work  in  the  business  of  such  silk  mill,  before  a  certificate  of 
the  settlement  of  such  person  under  the  Stat.  8  &  9  W,  3,  c.  30,  should 
be  given  to  Congleton.  The  declaration  then  stated  the  entry  of  J. 
Cla\i:on,  and  the  building  of  the  silk  mill;  and  that  on  the  1st  of  Jan- 
uary 1790,  all  the  estate  and  interest,  &c.  of  J.  Clayton  in  the  prem- 
ises duly  came  to  and  veste^  in  the  defendants  by  assignment,  by  vir- 
tue oPwhich  they  entered  and  were  possessed,  &c. :  and  then  assigned 
as  a  breach,  that  after  the  defendants  became  so  possessed,  and  while 
they  were  working  the  silk  mill,  and  during  the  continuance  of  the  term, 
they  received  divers  persons  as  servants,  workmen  and  apprentices  to 
work  jn^the  said  m^ll,  without  giving  the  previous  notice  before  menj 
tioned_to  the  town-clerk  of  Congleton,  and  that  the  persons  so  received 
worked  in  the  said  mill  without  any  such  notice,  and  that  they  had 
not  previously  gained  any  settlement  in  Congleton ;  by  reason  of  which 
the  township  of  Congleton  had  become  liable  to  relieve  them  and  their 
families,  and  had  expended  a  large  sum  in  the  same,  and  continued 
liable  to  the  burden,  &c. ;  and  that  the  plaintiffs  had  also  incurred  great 
expence  in  the  premises,  and  their  estates  and  property  in  the  township 
had  been  lessened  in  value. 


the  assignee  of  the  lessee — condition  not  to  sell  off  timber,  Verplanek  v. 
Wright,  23  Wend.  (N.  Y.)  506  (1S40).  Contra:  Lybbe  v.  Hart.  L.  K.  29  Ch. 
Div.  8,  19  (1S83).  Compare  Clegg  v.  Hands,  L.  R.  44  Ch.  Div.  503,  512  (1890). 
See  Allen  v.  Culver,  3  Denio  (N.  Y.)  284  (1846),  post,  p.  420. 

BiG.RlGHTS— 23 


354  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

The  defendants,  after  craving  oyer  of  the  indenture,  by  which  it  ap- 
peared further,  that  the  term  was  granted  by  the  corporation  in  con- 
sideration of  £80.  paid,  and  of  a  nominal  yearly  rfent,  demurred  gen- 
erally to  the  declaration. 

Lord  EllEnborough,  C.  J.^*  This  is  a  covenant  in  which  the  as- 
signee is  specifically  named ;  and  though  it  were  foi^  a  th[ng^_not_in. 
esse  at  the  time,  yet  being  specifically  named,  it  would  bind  him,  if  it 
affected  the  nature,  quality  or  value  of  the  thing  demised,  independ- 
ently of  collateral  circumstances;  or  if  it  aft'ected  the  mode  of  enjoy- 
ing it.  But  this  covenant  does  not  affect  the  thing  demised,  in  the  one 
way  or  the  other.  It  may  indeed  collateral]}'  aft'ect  the  lessors  as  to 
other  lands  they  may  have  in  possession  in  the  same  parish,  by  increas- 
ing the  poor's  rate  upon  them;  but  it* cannot  affect  them  even  collat- 
erally in  respect  of  the  demised  premises  during  the  term.  How  then 
can  it  affect  the  nature,  quality,  or  value  of  the  thing  demised  ?  Can  it 
make  any  difference  to  the  mills,  whether  they  are  worked  by  persons 
of  one  parish  or  another :  or  can  it  aft'ect  the  value  of  the  thing  at  the 
end  of  the  term,  independently  of  collateral  circumstances?  The  set- 
ding  an  additional  number  of  persons  in  this  place  may  indeed,  by 
means  of  the  increased  population,  bring  an  increased  burden  at  the 
end  of  the  term  on  those  who  are  to  pay  the  rates :  but  that  increase 
of  population  may  also  be  an  increased  benefit  to  the  land  owners,  as 
it  has  happened  within  our  own  experience  in  many  parts  of  this  king- 
dom, the  seats  of  manufactures,  where  the  value  of  land  has,  in  conse- 
quence, risen  in  a  great  proportion.  But  the  covenant  in  giuestipn  does 
not  affect  the  thing  demised  immediately,  but  only,  if  at  all,  in  rqspect 
of  collateral  circumstances ;  that  is  through  the  medium  of  an  increas- 
ed population,  and  the  increased  expence  of  providing  for  them  on 
the  one  hand,  with  the  increased  value  of  the  lands  to  be  set  against 
it  on  the  other  hand.  How  then  does  it  affect  the  mode  of  occupation  ? 
The  carrying  on  of  a  particular  trade  on  the  premises  may  be  said  to 
do  that ;  but  where  the  work  to  be  done  is  at  all  events  the  same,  wheth- 
er it  be  done  by  workmen  from  one  parish  or  another,  cannot  aft"ect  the 
mode  of  occupation.  The  covenant,  therefore,  not  directly  affecting 
the  nature,  quality,  or  value  of  the  thing  demised,  nor  the  mode  of  oc- 
cupying it,  is  a  collateral  covenant,  which  will  not  bind  the  assignee  of 
tiic  term,  though  named ;  and  this  is  a  question  with  the  assignee,  and 
not  with  the  original  lessee  who  entered  into  the  covenant.  In  the  case 
of  Bally  v.  Wells  [3  Wils.  25,  and  Wilmot's  Rep.  341]  the  covenant 
might  affect  the  thing  demised;  for  if  tlie  lessee  of  the  tithes  suft'ered 
any  of  the  farmers  of  the  parish  to  take  their  own  tithes,  such  union 
of  the  land  with  the  tithe  might  lay  a  foundation  for  claiming  a  modus, 
which  might  affect  the  future  value  of  the  tithes,  and  would  immedi- 


i*The  opinions  of  Le  Blanc  and  Bayley,  JJ.,  are  omitted. 


Ch.  4)  lp:gal  enforcement  or  covenants  355 

ately  affect  the  occupation.  But  we  cannot  say  that  this  covenant  does 
either:  and  therefore  it  does  not  run  with  the  land  so  as  to  bind  the 
assigfnees. 


Judgment  for  the  defendant.^ 


THRUSTON  V.  MINKE  et  al. 

(Court  of  Appeals  of  Maryland,   1870.     32  Md.  487.) 

Bartol,  C.  J.,^*^  dehvered  the  opinion  of  the  Court, 

It  appears  from  the  record,  that  before  the  24th  day  of  October, 
1867,  the  appellant  and  Frederick  Minke,  (the  appellee,)  were  seized  in 
fee  as  tenants  in  common,  of  a  lot  of  ground  in  the  town  of  Cumber- 
land, on  the  north-west  corner  of  Baltimore  and  George  streets ;  the 
appellant  owning  one-fourth,  and  Minke  three-fourths  thereof.  The 
lot  wa^TmpxiQve,d  -  by  a  three  story  building  known  and  occupied  as 
"St.  Nicholas  Hotel."  The  building  was  situated  on  the  corner  of  the 
streets  mentioned,  leaving  on  the  west  thereof  a  part  of  the  lot  front- 
ing on  Baltimore  street  vacant  or  unimproved. 

On  the  24th  day  of  October,  1867,  the  appellant  leased  to  Minke,  for 
the  term  of  ninety-nine  years,  renewable  forever,  his  undivided  fourth 
part  of  a  portion  of  the  vacant  or  unimproved  part  of  the  lot;  com- 
mencing at  the  westerly  wall  of  the  hotel  and  binding  thereon;  the 
parcel  so  leased  is  described  in  the  lease,  and  need  not  be  more  partic- 
ularly noticed  here. 

After  describing  the  parcel  demised,  the  lease  contains,  among  oth- 
ers, the  following  provisions : 

"With  the  privilege  to  said  lessee,  his  representatives  and  assigns  to 
use  so  much  of  said  westerly  wall  of  said  hotel  building,  as  binds  along 
the  first  line  of  the  property  hereby  demised,  as  a  party  wall,  to  the 
height  of  the  third-story  floor  of  said  hotel  building  only:  Provided, 
however,  and  this  lease  is  on  this  condition,  that  said  lessee  and  his  as- 
signs shall  not  at  any  time  hereafter  erect,  build  or  construct,  on  the 
part  of  the  lot  hereby  demised,  which  fronts  eleven  feet  on  Baltimore 

street  next  to  said  hotel  building,  and  runs  back  feet  in  the 

depth,  any  building  or  tenement,  any  portion  or  part  of  which  shall  be 

16  The  following  covenants  have  been  held  enforceable  by  the  lessor  against 
the  assignee  of  the  lessee:  Not  to  conduct  a  business,  Doe  d.  Bish  v.  Keeling, 
1  Mauie  &  S.  95  (1813) ;  not  to  open  a  butcher  shop,  Doe  v.  Spry,  1  B.  & 
Aid.  017  (1818) ;  not  to  manufacture  a  specified  kind  of  product,  American 
Strawboard  Co.  v.  Haldeman  Paper  Co.,  83  Fed.  619,  27  C.  C.  A.  634  (1897) ; 
to  conduct  the  premises  as  a  saloon  in  an  orderly  and  legal  manner,  Crowe 
v.  Riley.  G3  Ohio  St.  1,  57  N.  E.  956  (1900) ;  Granite  Building  Corp.  v.  Greene, 
25  R.  I.  586,  57  Atl.  649  (1904).  Ace,  as  to  the  last  covenant,  by  the  assignee 
of  the  lessor  against  the  lessee:  Fleetwood  v.  Hull,  L.  R.  23  Q.  B.  D.  "do 
(1889). 

10  Part  of  the  opinion  is  omitted. 


356  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

higher  than  the  present  level  of  said  third  story  floor  of  said  hotel 
building ;  and  provided  further,  that  in  using  such  part  of  said  wester- 
ly wall  of  said  hotel  building  as  a  party  wall  as  aforesaid,  the  said  les- 
see and  his  assigns  shall  not  weaken  or  materially  injure  or  affect  the 
same." 

The  bill  of  complaint  filed  by  the  appellant  states  that  the  above  con- 
ditions were  put  in  the  lease  "for  the  express  purpose  of  preventing 
Minke,  or  his  assigns,  from  shutting  up,  or  excluding  the  light  from 
the  west  window  in  the  third  story  hall  of  the  main  hotel  building,  and 
other  windows  on  the  west  side  of  said  hotel  building,  in  tlie  third 
story,  and  also  to  prevent  Minke  from  building  any  tenement  or  house 
higher  than  the  third  story  floor  of  said  hotel  building,  for  the  space 
of  eleven  feet  westerly  therefrom." 

And  the  bill  charges  "that  Mirike  has  directly  violated  and  broken 
said  condition." 

That  "said  Minke,  without  any  agreement  on  the  part  of  the  com- 
plainant, or  waiver  or  release  of  said  condition,  and  in  opposition  to 
the  repeated  remonstrances  of  the  complainant,  is  now  proceeding  to 
erect  and  construct  a  building,  and  is  actually  constructing  the  same  of 
brick,  to  a  height  several  feet  above  the  roof  of  the  main  hotel  building, 
and  shutting  up  the  whole  space  of  eleven  feet  in  width  on  Baltimore 
street,  for  the  whole  depth  of  thirty-two  and  a  quarter  feet,  by  occupy- 
ing the  whole  thereof  with  such  building." 

The  bill  further  charges  that  Minke  is  proceeding  to  construct  a 
large  wooden  cornice  on  and  against  the  westerly  wall  of  the  hotel 
building,  at  and  near  the  front  thereof,  on  Baltimore  street,  and  putting 
the  same  far  over  and  above  the  roof  of  the  main  hotel  building,  there- 
by, as  alleged,  increasing  the  danger  to  the  same  in  case  of  fire.  And 
the  effect  of  such  violation  of  the  conditions  of  the  lease  is  alleged  to 
be  to  shut  out  and  obstruct  the  light  and  ventilation  from  the  hall  of 
the  third  story  of  the  hotel,  and  greatly  to  injure  and  impair  the  value 
of  the  same  and  of  the  complainant's  interest  therein. 

An  injunction  was  issued  to  prevent  and  restrain  Minke  from  pro- 
ceeding with  the  construction  of  the  proposed  building,  contrary  to, 
and  in  violation  of  the  covenant  and  conditions  contained  in  the  lease. 

The  appellee,  Minke,  answered  the  bill,  and  proof  was  taken,  and 
the  Circuit  Court,  on  hearing  the  cause  upon  the  pleading  and  proofs, 
passed  an  order  dissolving  the  injunction.  From  that  order  the  pres- 
ent appeal  was  taken. 

In  the  progress  of  the  case  in  the  Court  below,  the  fact  was  dis- 
closed that  the  appellant,  Thruston,  after  making  the  lease,  on  the  30th 
day  of  October,  1867,  conveyed  to  John  B.  H.  Campbell  all  his  re- 
versionary interest  and  estate  in  the  property  demised,  and  assigned 
the  covenants  therein,  and  the  respondent  contended  that  the  effect  of 
such  conveyance  and  assignment  was  to  confer  upon  Campbell  the  ex- 
clusive right  to  enforce  the  particular  covenant  or  condition  under  con- 


Ch.  4)  LKGAL  ENrOKCEMENT  OF  COVENANTS  357 

sideration,  and  to  divest  tlie  complainant  of  the  right  to  maintain  any 
action  at  law  or  in  equity  for  the  breach  or  violation  thereof.  This 
defence  was  ruled  good  by  the  Circuit  Court,  and  its  decree  dissolving 
the  injunction  appears  to  have  rested  mainly  on  that  ground. 

In  this  view  we  do  not  concur.  It  is  plain,  from  the  nature  of  the 
condition,  that  it  was  inserted,  as  alleged  in  the  bill,  only  for  the  benefit 
and  protection  of  the  hotel  property,  in  whicli  the  lessor  retained  his 
estate,  and  that  it  was  not  in  any  respect  intended  for  the  benefit  of 
the  lessor  as  owner  of  the  reversion  in  the  property  leased.  It  was,  in 
its  nature,  an  independent  covenant  or  condition,  made  with  Thruston, 
as  owner  of  the  contiguous  property,  for  the  benefit  and  protection  of 
which  it  was  intended;  it  was  not  a  covenant  running  with  the  land 
demised,  and  did  not  pass  to  the  assignee  of  the  reversion. 

The  effect  of  the  condition  was  to  create  a  right  or  interest  in  the 
nature  of  an  incorporeal  hereditament  or  easement  appurtenant  to  the 
contiguous  hotel  property,  and  arising  out  of  the  parcel  of  land  de- 
mised by  the  lease.  The  principle  is  correctly  stated  by  the  Court  in 
Whitney  v.  Union  R.  Co.,  11  Gray  (Mass.)  359,  71  Am.  Dec.  715,  as 
follows : 

"When  it  appears,  by  a  fair  interpretation  of  the  words  of  the  grant, 
that  it  was  thejntent  of  the  parties  to  create  or  reserve  a  right  in  the 
nature  of  a  servitude  or  easement  in  the  property  granted,  for  the 
benefit  of  the  other  land  owned  by  the  grantor,  and  originally  forming, 
with  the  land  conveyed,  one  parcel,  such  right  shall  be  deemed  ap- 
purtenant to  the  lapd  of  the  grantor,  and  binding  on  that  conveyed  to 
~the  grantee7  andThFTTgRfand  burden  thus  created  will  respectively 
pass  to  and  be  binding  on  all  subsequent  grantees  of  the  respective 
parcels  of  lands."     *     *     * 

The  appellant,  as  partner  of  the  hotel  property,  is  entitled  to  the 
benefit  of  the  condition  in  the  lease,  and  that  it  did  not  pass  to  Camp- 
bell by  the  assignment  of  the  reversion.  Is  he  entitled  to  relief  by  a 
writ. of  injunction  to  prevent  its  violation?     *     *     * 

In  2  Story's  Eq.  Jur.  §  927,  it  is  said :  "Where  easements  or  .seryi- 
tudes  are  annexed,  by  grant  or  covenant  or  otherwise,  to  private  es- 
tates  *  *  *  ~  fhe  due  enjoyment  of  them  will  be  protected  against 
encroachments,  by  injunction." 

That  is  the  nature  of  the  right  that  has  been  encroached  upon  here. 
In  this  case  the  covenant  or  condition  in  the  lease  is  express  and  posi- 
tive, and,  as  we  have  before  said,  the  appellant,  as  part  owner  of  the 
hotel  property,  for  the  protection  or  benefit  of  which  it  was  made,  has 
a  right  to  insist  on  its  observance  by  the  lessee. 

The  consequence  of  its  violation  in  the  manner  charged  in  the  bill, 
as  shown  by  the  evidence,  is,  to  shut  out,  or  materially  obstruct  the 
light  and  ventilation  of  the  third  story  of  the  hotel. 

For  such  damage  and  injury,  an  action  at  law  would  not,  in  our 
opinion,  aft'ord  an  adequate  and  complete  remedy,  and,  therefore,  the 
appellant  is  entitled  to  relief  by  injunction. 


;  (\     7-lA^t-/«^ 


358  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

For  the  reasons  stated,  the  order  of  the  Circuit  Court  dissolving  the 
injunction  will  be  reversed,  with  costs  to  the  appellant,  and  the  cause 
will  be  remanded. 

Reversed  and  remanded.^^ 


WILLIAMS  V.  EARLE. 
(Court  of  Queen's  Bench,  1868.     L.   R.  3  Q.   B.   Cas.   739.) 

Blackburn,  J.^®  This  is  an  action  by  the  lessor  against  the  as- 
signee of  a  lease  for  breach  of  covenants  in  the  lease,  and  the  rule  has 
been  well  established  ever  since  Spencer's  Case,  5  Rep.  16a,  1  Sm.  L. 
C.  6th  Ed.  45,  that  when  covenants  are  contained  in  a  lease  (at  all  events 
if,  as  in  the  present  case,  the  covenants  are  on  behalf  of  tlie  lessee  and 
his  assigns),  and  the  covenants  touch  or  concern  the  land,  although  the 
original  covenants  are  made  by  the  original  lessee  with  the  lessor,  yet 
they  run  with  the  land,  and  there  being  privity  of  estate  between  the 
assignee  and  the  lessor,  the  lessor  may  sue  the  assignee  for  breach 
of  any  of  them.  But  this  is  only  in  the  case  of  a  covenant  which 
"touches  or  concerns"  the  land. 

17 A.  was  a  brewer  and  dealer  in  ale,  owning  his  own  brewery  and  a  pub- 
lic house.  He  leased  the  latter  to  X.  by  indenture ;  the  lease  provided  that 
the  word  "lessor"  should  include  A.,  his  heirs,  executors,  administrators,  and 
assigns ;  with  a  corresponding  provision  as  to  the  word  "lessee."  The  lessee 
covenanted  to  sell  no  ale  in  the  leased  premises  except  that  purchased  from 
the  lessor.  A.  later  conveyed  to  B.,  another  brewer,  A.'s  brewery  and  busi- 
ness, his  reversion  in  the  public  house,  and  the  benefit  of  the  covenant.  A.'s 
brewery  was  dismantled.  X.  refused  to  buy  his  ale  from  B.  B.  sought  an 
injunction  restraining  X.  from  selling  on  the  leased  premises  any  ale  other 
than  that  bought  from  B.  The  court  held  that  B.  was  entitled  to  his  in- 
junction. In  considering  whether  the  covenant  would  nin  at  law.  Cotton. 
L.  J.,  said: 

"Then  it  is  said  that  this  covenant  does  not  run  with  the  land.  I  think 
it  does  run  with  the  land.  That  is  my  opinion ;  but  there  are  other  points 
on  which  this  case  may  be  decided  independently  of  that  question.  It  is  a 
contract  relating  to  the  way  in  which  the  business  at  a  particular  house  is 
to  be  carried  on,  therefore  it  is  a  contract  relating  to  the  public  house,  just 
as  much,  in  my  opinion,  as  a  contract  as  to  the  mode  in  which  the  cultiva- 
tion of  a  particular  bit  of  land  is  to  be  carried  on  relates  to  the  land.  It 
affects  the  value  of  the  reversion,  it  affects  the  house,  and  in  ray  opinion  it 
is  a  contract  running  with  the  land.  If  that  is  so,  that  will  enable  the 
judgment  to  be  supported,  and  will  enable  the  present  owner  of  the  reversion 
in  this  case  to  sue." 

Lopes,  L.  J.,  said: 

"But  then  a  question  is  raised  as  to  whether  the  benefit  of  this  covenant 
runs  with  the  reversion.  It  was  contended  by  Mr.  Collins  that  it  did  not 
run  with  the  reversion,  and  that  it  was  purely  collateral.  The  benefit  to 
run  with  the  reversion  must  touch  or  concern  the  demised  premises.  Aow, 
does  tills  covenant  touch 'or  concern  the  demised  premises?  It  relates  to  the 
mode  of  enjoyment  of  a  public  house.  The  thiQg  demised  is  a  public  house, 
and  the  covenant  compels  the  covenantee  to  buy  the  beer  of  the  covenantor 
and  his  assigns.  In  )uy  opinion,  it  touches  and  concerns  the  demised  prem- 
ises; it  affects  the  mode  of  enjoyment  of  the  premises,  and  therefore  it  runs 
with  the  reversion."     Clegg  v.  Hands,  L.  R.  44,  Ch.  D.  503,  518,  523  (1S90). 

See,  also,  Manchester  Brewing  Co.  v.  Coombs,  [1901]  2  Ch.  608. 

18  The  statement  of  facts  and  opinion  of  Lush,  J.,  are  omitted. 


Ch.  4)  LEGAL   ENFORCEMENT   OF   COVENANTS  359 

Now  the  first  and  chief  point  to  be  determined  here  is,  there  being 
a  covenant  in  the  original  lease  by  which  the  lessees,  on  behalf  of  them- 
selves and  their  assigns,  covenant  with  the  lessor  that  neither  they  nor 
their  assigns  will  assign  the  lease  without  the  licence  of  the  mortgagor 
and  mortgagee,  and  the  defendant  the  assignee  having  assigned  with- 
out their  licence,  whether  that  is  a  covenant  which  touches  or  concerns 
the  land,  and  therefore  runs  with  it  and  binds  the  defendant. 

I  have  been  unable  to  perceive,  after  listening  attentively  to  the  argu- 
ment of  the  counsel  for  the  defendant,  any  reason  why  this  covenant 
should  not  be  considered  a  covenant  touching  and  concerning  the  land. 
It  is  an  express  covenant  as  to  who  shall  have  and  occupy  the  land,  and 
it  is  inserted  with  a  view  that  the  landlord  shall  not  be  deprived  of  a 
voice  as  to  who  shall  be  substituted  for  the  original  lessee  in  the  posses- 
sion of  the  landlord's  premises.  It  is  certainly  very  material  as  touch- 
ing the  interest  of  the  landlord  and  tenant,  and  touches  and  concerns 
the  thing  demised  quite  as  directly  as  the  many  covenants  that  have 
been  held  to  do  so,  such  as  a  covenant  to  renew  a  lease,  which  has 
been  held  to  run  with  the  land  in  more  than  one  case  cited  in  the  judg- 
ment of  the  Court  in  Roe  v.  Hayley,  12  East,  at  page  469;  or  a  cove- 
nant to  reside  in  the  demised  premises,  which  was  held  in  Tatem  v. 
Chaplin,  2  H.  Bl.  133,  to  bind  the  assignee  though  not  named.  Again, 
in  Bally  v.  Wells,  3  Wils.  25,  33,  a  covenant  not  to  let  any  of  the 
farmers  take  the  tithes  demised  without  the  consent  of  the  lessor  was 
held  to  run  with  the  tithes  and  bind  the  assignee,  assigns  being  men- 
tioned in  the  covenant.  And  the  expression  made  use  of  by  the  Court 
at  the  end  of  the  judgment,  which  Mr.  Jones  relied  upon  as  shewing 
that  a  covenant  to  assign  without  a  license  could  not  run  with  the  land, 
seems  to  have  no  such  meaning,  but  the  contrary.  The  expression  is,  "a 
covenant  not  to  assign  generally  must  be  personal  and  collateral,  and 
can  only  bind  the  lessor  himself,  there  never  can  be  an  assignee ;"  but 
the  Court  adds,  "whereas  the  present  lease  grants  to  executors,  admin- 
istrators, and  assigns;"  and  what  they  seem  to  have  meant  is,  that 
when  the  lessee  covenants,  not  that  he  will  not  assign  without  licence, 
but  that  he  will  not  assign  at  all,  then  the  covenant  of  course  does  not 
run  with  the  land,  because  the  covenant  is  gone  whether  the  assignment 
be  with  a  licence  or  without.  But  when  there  is  a  covenant  that 
the  lessee"  and  his  assigns  will  not  assign  without  licence,  it  is  different, 
and  the  covenant  may  run  with  the  land  toties  quoties.  It  seems  to 
me,  therefore,  both  upon  principle  and  authority,  that  the  present  cove- 
nant not  to  assign  without  licence  from  the  landlord  from  time  to  time, 
does  run  with  the  land,  and  consequently  the  defendant,  the  assignee, 
is  liable  for  the  breach. 

But  though  there  is  a  covenant  binding  on  the  defendant  not  to  as- 
sign, the  assignment  is  nevertheless  operative,  and  the  estate  passed 
from  the  defendant  to  Banks,  and  the  breaches  of  covenant  which  have 
occurred  since  are  not  breaches  for  which  the  defendant  can  be  liable 
in  the  present  form  of  action ;  anything  done  by  the  defendant  on  the 


360  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part   2 

premises  since  then  he  may  be  liable  for  in  an  action  on  the  case:  but 
the  remedy  on  the  covenants  must  be  against  the  new  tenant  Banks. 
But  the  plaintiff  is  entitled  to  recover  indirectly  in  the  present  action 
by  way  of  damages  for  the  breach  of  the  covenant  not  to  assign.  For 
inasmuch  as,  if  the  covenant  not  to  assign  had  not  been  broken,  the 
assignee  would  have  remained  liable  to  the  plaintiff  to  fulfil  all  these 
covenants,  the  breaches  of  which  are  rnentioned  in  the  first  count,  and 
there  would  have  been,  if  he  remained  solvent,  a  complete  and  suffi- 
cient remedy  in  his  liability,  the  defendant  having  assigned  over  to  a 
person,  who  no  doubt  i^  selected  because  he  has  nothing  to  lose  and  so 
loses  nothii-jg  by  incurring  the  liability  under  the  covenants,  there  has 
been  damage  sustained  by  the  plaintiff'  by  the  defendant's  breach  of 
covenant  not  to  assign,  by  reason  of  the  plaintiff'  only  having  the  lia- 
bihty  of  this  inferior  person,  instead  of  the  liability  of  the  defendant, 
for  the  breaches  of  the  other  covenants ;  and  the  arbitrator,  in  assess- 
ing the  damages  on  the  second  count,  must  put  the  plaintiff,  as  far  as 
possible,  in  the  same  position,  so  far  as  money  will  do  it,  as  if  the  cove- 
nant had  not  been  broken.  The  arbitrator  will  take  into  consideration 
how  much  the  worse  the  plaintiff  will  be  both  in  respect  of  breaches 
of  covenant  already  incurred,  as  well  as  in  respect  of  breaches  which 
may  in  future  be  incurred.  The  arbitrator  must  see  what  sum  of  mon- 
ey will  put  the  plaintiff  in  the  same  position  as  he  would  have  been  in 
if  the  covenant  not  to  assign  the  lease  had  not  been  broken,  and  the 
plaintiff"  had  retained  the  liability  of  the  defendant  instead  of  an  in- 
ferior liability.  I  agree  with  Mr.  Jones  that  this  will  be  a  matter  of 
some  difficulty,  and  the  parties  would  do  well  to  agree  that  the  lease 
shall  be  surrendered  to  the  plaintiff,  and  then  the  measure  of  damages 
will  be  by  how  much  worse  off  the  plaintiff  is  than  he  would  have  been 
had  the  defendant  continued  bound  as  lessee  all  the  time,  as  he  would 
have  been  had' he  not  broken  his  covenant  not  to  assign. 

There  are  some  further  questions  for  our  consideration,  which  will 
be  material  for  the  arbitrator's  guidance  in  assessing  the  damages,  both 
on  the  first  and  second  counts.  In  this  form  of  action  the  defendant 
is  only  liable  for  a  breach  of  covenant;  and  as  has  been  already  stated 
a  covenant  to  run  with  the  land  must  touch  and  concern  the  land ;  and 
it  appears  from  the  lease  that  there  was  demised,  not  only  fixtures,  but 
movable  things,  which  are  mentioned  in  the  schedule — tools,  utensils, 
and  other  things.  And  there  is  a  covenant  that  the  fixtures  and  other 
things  should  be  kept  in  order  and  restored  when  worn  out,  and  when 
restored  kept  in  the  same  good  working  order.  So  far  as  that  cove- 
nant relates  to  anything  fixed  to  the  land  the  covenant  runs  with  the 
land,  and  for  any  breach  committed  during  the  defendant's  time  he  will 
be  liable  on  the  first  count ;  and  any  breach  which  may  have  been  com- 
mitted during  Banks'  time,  after  the  assignment  from  the  defendant, 
will  be  matter  to  be  taken  into  account  in  assessing  the  damages  against 
the  defendant  on  the  second  count.  But  as  to  the  movable  things,  the 
covenant  does  not  run  with  the  land,  as  the  mode  in  which  they  were 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  361 

dealt  with  could  not  have  affected  the  land,  and  for  anything  connected 
with  them  the  plaintiff  cannot  recover  in  the  present  form  of  action. 
For  instance,  a  boiler,  fixed  to  the  land,  thotigh  the  tenant  might  be. 
able  to  remove  it  at  the  end  of  the  term,  yet  the  keeping  it  there  dur- 
ing the  term  would  relate  to  the  occupation  and  enjoyment  of  the  land, 
and  the  covenant  for  keeping  it  there  would  run  with  the  land.  But 
the  covenants  as  to  mere  chattels  cannot  run  with  the  land,  and,  as  to 
such  things,  if  the  parties  cannot  wisely  agree  to  refer  all  matters  to 
the  arbitrator,  the  mortgagor,  who  is  the  real  plaintiff,  will  take  advice 
as  to  bringing  another  action. 
Judgment  for  the  plaintiff.^' 


VERNON  v.  SMITH. 

(Court  of  King's  Bench,  1821.     5  Barn.  &  Aid.  1.) 

Covenant  by  the  assignee  of  the  lessor  against  the  lessee.  The  dec- 
laration stated,  that  one  J.  Hance,  the  lessor,  before  the  time  of  mak- 
ing the  lease,  was  lawfully  possessed  of  the  tenements  and  premises 
for  the  residue  and  remainder  of  a  certain  term  of  years,  whereof 
seven  years  were  then  unexpired ;  which  tenements  and  premises,  with 
the  appurtenances,  then  were,  and  thence  hitherto  have  been  and  still 
are  situate  within  the  weekly  bills  of  mortality,  mentioned  in  the  14  G. 
3,  c.  78;  and  being  so  possessed  thereof,  he,  the  said  J.  Hance,  by 
indenture,  demised  and  leased  to  the  defendant  the  tenements  and 
premises,  with  the  appurtenances,  habendum,  for  seven  years,  at  a 
certain  rent  therein  mentioned ;  covenant  by  the  defendant  that  he 
should  and  would  forthwith,  at  his  own  expense,  and  from  time  to  time 
during  the  term,  insure  in  some  of  the  public  offices  in  London  or  West- 
minster, for  the  purpose  of  insuring  houses  from  casualties  by  fire, 
the  messuage,  dwelling-house,  coach-house,  stable,  and  premises  there- 
by demised  or  thereafter  to  be  erected  and  built  thereon,  to  the  amount 

19A  reassignment  without  the  consent  of  the  lessor  by  an  assignee  to  tlie 
original  lessee  is  a  breach  of  the  covenant  not  to  assign  without  the  con- 
sent of  the  lessor.  McEacharn  v.  Colton  [1902]  A.  C.  104 ;  Munro  v.  Waller, 
28  Ont.  29  (18.97).  Contra:  McCormick  v.  Stowell,  138  Mass.  431  (1885).  A 
release  by  one  joint  lessee  to  his  co-lessee  is  not' a  breach  of  the  covenant 
against  assigning.  Roosevelt  v.  Hopkins.  33  N.  Y.  81  (1865).  Contra:  Tober 
V.  Collins,  130  111.  App.  333  (1906);  Varley  v.  Coppard,  L.  R.  7  C.  P.  505 
(1872),  joint  assignees. 

A.  leased  to  X.  and  covenanted  to  renew  the  lease.  X.  covenanted  not  to 
assign  without  the  consent  of  A.  X.  assigned  to  Y.  with  A.'s  consent.  Y. 
assigned  to  Z.  without  A.'s  consent.  Held,  Z.  has  no  action  against  A.  for 
breach  of  the  covenant  to  renew  the  lease.  Upton  v.  Hosmer,  70  N  H 
493,  49  Atl.  96  (1900). 

See,  also,  Randol  v.  Scott,  110  Cal.  590,  42  Pac.  976  (1895);  Postal  Tele- 
graph Cable  Co.  v.  Western  Tnion  Telegraph  Co.,  155  111.  335,  40  N.  E.  587 
(1S95) ;  Bockover  v.  Post,  25  N.  J.  Law,  285  (1S55) ;  Gazlay  v.  Williams  ''10 
U.  S.  41,  28  Sup.  Ct.  687,  52  L.  Ed.  950  (1908). 

As  to  the  difference  between  an  assignment  and  a  sublease,  see  post,  pp. 
396-^05. 


362  RIGHTS   IN  THE   LAND   OP   ANOTHER  (Part  2 

of  £800,  in  the  joint  names  of  the  defendant,  his  executors,  adminis- 
trators, or  assigns,  and  of  Robert  Stone,  the  ground  landlord  of  the 
premises,  his  heirs  or  assigns ;  and  should  and  would,  at  the  request  of 
Hance,  or  of  the  ground  landlord,  their  heirs  or  assigns,  produce  the 
policy  and  receipts  for  such  insurance.  The  declaration  set  out  the 
proviso  in  the  lease  for  re-entry,  on  breach  of  any  of  the  covenants. 
It  then  stated  the  defendant's  entry  into  the  premises,  and  that,  after 
the  making  of  the  indenture,  the  term  was  assigned  by  Hance  to  the 
plaintiff.  The  breach  assigned  was,  that  the  defendant  did  not  insure. 
The  second  count  stated,  that,  before  tlie  making  of  the  demise  to  the 
defendant,  in  the  first  count  mentioned,  and  also  before  and  at  the  time 
of  the  making  of  the  demise  thereinafter  mentioned,  Robert  Stone 
was  seized  in  fee  of  and  in  the  said  demised  tenements,  and  by  a  cer- 
tain indenture,  demised  the  same  to  J.  Hance,  habendum,  for  85  years 
and  six  months.  And  that  J.  Hance,  by  that  indenture,  covenanted  to 
insure  the  premises  from  fire,  to  the  amount  of  three-fourths  of  the 
value  thereof,  in  the  joint  names  of  himself  and  Stone,  with  a  proviso 
for  re-entry,  in  case  of  non-performance  of  the  covenants.  It  then 
stated,  that  three-fourths  of  the  value  of  the  premises  amounted  to 
£800,  and  that,  by  reason  of  the  said  demised  premises  remaining  un- 
insured. Stone  brought  an  action  of  ejectment  for  the  forfeiture,  and 
the  plaintiff'  was  forced  to  pay  the  costs  to  him,  amounting  to  £500,  and 
also  to  sustain  his  own  costs,  amounting  to  £1000  breach,  that  the  de- 
fendant had  not  kept  the  covenant  made  by  him,  as  stated  in  the  first 
count.  To  this  declaration,  there  was  a  general  demurrer  and  joinder. 
Abbott,  C.  J.-"  It  is  not  necessary,  on  the  present  occasion,  to  give 
any  opinion  on  the  effect  of  a  covenant  to  insure  premises  situate  with- 
out the  limits  mentioned  in  the  14  Geo.  3,  c.  78.  These  premises  lying 
within  those  limits,  the  effect  of  that  statute  is,  to  enable  the  landlord, 
by  application  to  the  governors  or  directors  of  the  insurance  office, 
to  have  the  sum  insured  laid  out  in  rebuilding  the  premises.  Now 
a  covenant  to  lay  out  a  given  sum  of  money  in  rebuilding  or  repairing 
the  premises,  in  case  of  damage  by  fire,  would  clearly  be  a  covenant 
running  with  the  land,  that  is,  such  a  covenant  as  would  be  binding  on 
the  assignee  of  the  lessee,  and  which  the  assignee  of  the  lessor  might 
enforce.  Here  the  defendant  does  not  covenant  expressly  in  those 
words,  but  only  that  he  will  provide  the  means  of  having  £800  ready 
to  be  laid  out  in  rebuilding  the  premises  in  case  of  fire,  but,  connect- 
ing that  covenant  with  the  act  of  parliament,  the  landlord  has  a  right 
to  say,  that  the  money,  when  recovered,  shall  be  so  laid  out.  It  is, 
therefore,  as  compulsory  on  the  tenant  to  have  the  money  laid  out  in 
rebuilding,  and  as  beneficial  for  the  landlord  as  if  the  tenant  had  ex- 
pressly covenanted  that  he  would  lay  out  the  money  he  received  in  re- 
spect of  the  policy  upon  the  premises.    For  these  reasons,  I  think  that 

2  0  Part  of  the  opinion  of  Best,  J,,  and  tbe  opinions  of  Bayley  and  Holroyd, 
JJ.,  are  omitted. 


Ch.  4)  LEGAL  ENFOKCEMENT  OF  COVENANTS  363 

this  is  a  covenant  running  with  the  land,  for  the  breach  of  which  the 
assignee  of  the  lessor  may  sue ;  and,  consequently,  there  must  be  judg- 
ment for  the  plaintiff 

Best,  J.  It  has  been  argued  from  the  preamble  to  the  83d  section 
of  the  14  G.  3,  c.  78,  that  this  provision  of  the  statute  only  applies  to 
cases  where  fraud  is  suspected.  But  the  enacting  part  of  the  clause 
goes  beyond  the  mischief  mentioned  in  the  preamble,  and  is  large 
enough  to  embrace  this  case.  For,  under  the  first  branch  of  it,  where 
the  owner  of  the  building  requests  the  insurance  company  so  to  apply 
the  money,  no  suspicion  of  fraud  is  necessary  to  make  such  request 
compulsory  on  the  directors.  Within  the  district,  therefore,  to  which 
the  building  act  appHes,  this  covenant  provides  a  fund  for  the  rebuild- 
ing of  the  premises,  which  the  owner  has  a  right  to  require,  shall  be 
applied  to  that  purpose;  and  then  it  is  clear,  that  the  assignee  has  a 
direct  interest  in  having  the  insurance  kept  up.  But  I  think,  also,  that 
if  the  premises  were  in  any  other  part  of  the  kingdom,  this  would  be 
a  covenant  that  would  pass  to  an  assignee.  A  covenant  in  a  lease 
which  the  covenantee  cannot,  after  his  assignment,  take  advantage  of, 
and  which  is  beneficial  to  the  assignee  as  such,  will  go  with  the  estate 
assigned.  If  this  were  not  the  law,  the  tenant  would  hold  the  estate 
discharged  from  the  performance  of  one  of  the  conditions  on  which  it 
was  granted  to  him.  The  original  covenantee  could  not  avail  himself 
of  this  covenant ;  he  sustains  no  loss  by  the  destruction  of  the  build- 
ings, and  therefore  has  no  interest  to  have  them  insured.  *  *  *  This 
covenant  is  as  beneficial  to  an  assignee  as  it  was  to  the  covenantee. 
It  secures  to  the  tenant  the  means  of  performing  his  covenant,  and  to 
the  landlord,  a  solvent  instead  of  a  ruined  tenant.  It  is  a  covenant  ben- 
eficial to  the  owner  of  the  estate,  and  to  no  one  but  the  owner  of  the 
estate ;  and  therefore*  may  be  said  to  be  beneficial  to  tlie  estate,  and 
so  directly  within  the  principle  on  which  covenants  are  made  to  run 
with  the  land.  *  *  *  Lord  Coke  (Co.  Litt.  215b)  *  *  *  adds, 
that  the  statute  does  not  extend  to  "covenants  for  payment  of  a  sum  in 
gross,  delivery  of  corn,  wood,  or  the  like."  A  sum  in  gross  is  in  the 
nature  of  a  fine  which  belongs  to  the  lessor,  and  can  never  be  intended 
for  an  assignee.  By  the  deliveries  of  corn  and  wood  were  meant  de- 
liveries of  those  articles  at  the  mansion-house  of  the  lessor,  and  not 
rents  payable  in  corn  or  wood,  without  any  stipulations  as  to  the 
place  where  the  articles  were  to  be  delivered.  These  deliveries  at  the 
mansion-house  were  inconsiderable  in  value,  and  would  be  of  no  use  to 
the  assignee,  unless  he  became  the  assignee  of  the  mansion  as  well  as 
the  farm.  In  5  Coke,  18,  it  is  said^  "that  the  32  H.  8,  was  resolved  to 
extend  to  covenants  which  touch  or  concern  the  thing  demised,  and 
not  to  collateral  covenants."  In  Spencer's  case,  Moore,  159,  the  same 
doctrine  is  laid  down  in  the  same  terms,  and  this  case  is  put  by  Gawdy, 
J.,  and  assented  to  by  all  the  judges  and  Serjeants,  "that  a  covenant 
that  a  lessor  will,  at  the  end  of  the  term,  grant  another  lease,  runs  with 
the  land.    The  covenant  here  mentioned  is  not  beneficial  to  the  estate 


364  RIGHTS   IN  THE   LAN^D   OF   ANOTHER  (Part  2 

granted,  in  the  strict  sense  of  the  words,  because  it  has  no  effect  until 
that  estate  is  at  an  end,  but  it  is  beneficial  to  the  owner,  as  owner,  and 
to  no  other  person.  By  the  terms  collateral  covenants,  which  do  not 
pass  to  the  assignee,  are  meant  such  as  are  beneficial  to  the  lessor, 
without  regard  to  his  continuing  the  owner  of  the  estate.  This  prin- 
ciple will  reconcile  all  the  cases.  In  Webb  v.  Russell,  3  Term  Rep. 
402,  Lord  Kenyon  considers  grantees  or  assignees  to  stand  in  the  same 
situation,  and  to  have  the  same  remedy  against  the  lessees,  as  heirs  at 
law  of  individuals,  or  successors  in  the  case  of  corporations,  had  before 
the  statute.  For  these  reasons,  I  am  of  opinion  that  the  plaintiff  is  en- 
titled to  judgment. 

Judgment  for  the  plaintiff. ^^ 


VYVYAN  v.  ARTHUR. 

(Court  (rf  King's  Bench,  1823.     1  Barn.  &  C.  410.) 

Covenant  by  the  devisee  of  the  lessor  against  the  administratrix  of 
the  lessee.  The  declaration  stated,  that  at  the  time  of  making  the  lease 
Thomas  Vyvyan  the  lessor  was  seised  in  fee  of  the  demised  tenements 
with  the  appurtenances,  and  also  of  a  certain  mill ;  and  being  so  seis- 
ed, on  the  24th  June,  1779,  by  indenture  demised  to  N.  D.  Arthur,  his 
executors,  administrators,  and  assigns,  a  close  of  land  together  with 
certain  common  of  pasture  in  the  indenture  described.  Habendum 
for  99  years,  if  three  persons  therein  mentioned  should  so  long  live, 
yielding  and  paying  to  the  lessor,  his  heirs  and  assigns,  certain  rents, 
sums  of  money,  payments,  and  returns ;  and  also  doing  certain  suits 
and  services  in  the  indenture  mentioned;  and  also  doing  suit  to  the 
mill  of  the  said  Thomas  his  heirs  and  assigns,  called  Tregamere  mill, 
by  grinding  all  such  corn  there  as  should  grow  in  or  upon  the  close 
thereby  demised  during  the  term.  The  declaration  then  stated  the  en- 
try of  the  lessee,  and  that  the  lessor  being  seised  in  fee  of  the  rever- 
sion of  the  demised  premises,  by  his  will  devised  the  same,  and  also 
the  said  mill  unto  three  persons  in  the  will  mentioned,  their  heirs  and 
assigns,  to  the  use  of  the  plaintiff  for  his  life ;  that  the  lessor  died ; 
and  that  by  force  of  the  statute  made  for  transferring  uses  into  pos- 
session, the  plaintiff  became  seised  of  the  reversion  in  the  demised 
premises  and  of  the  mill  for  the  term  of  his  life;  that  the  lessee  died 
intestate  during  the  continuance  of  the  term;  and  that  administration 
was  duly  granted  to  the  defendant;  and  that  one  of  the  persons  for 
whose  life  the  lease  was  granted  was  still  living.  Breach,  that  after 
the  plaintiff  became  seised  of  the  reversion  of  the  demised  premises  and 
of  the  mill,  and  during  the  lifetime  of  the  lessee,  corn  grew  upon  the 
demised  premises  which  ought  to  have  been  ground  at  the  mill;    yet 

21  Ace. :  Masurey  v.  Southworth,  ante,  p.  343;  Northern  Trust  Co.  v.  Sny- 
der, 76  Fed.  34,  22  C.  C.  A.  47  (1896).  Compare  Reid  v.  McCrum,  91  N.  Y. 
412  (1SS3). 


Ch.  4)  LEGAL    ENFOKCEMENT   OF    COVENANTS  3G5 

the  lessee  in  his  lifetime,  and  the  defendant  since  his  death,  did  not  do 
suit  to  the  mill  of  the  plaintiff,  by  grinding  there  the  corn  so  grown 
upon  the  demised  premises,  but  wholly  neglected  so  to  do.  To  this 
declaration  there  was  a  general  demurrer. 

Bayley,  J.--  I  am  of  opinion  that  this  is  a  covenant  which  runs 
witli  the  land  so  as  to  entitle  the  assignee  of  the  reversion  to  maintain 
this  action,  which  is  brought  against  the  defendant,  not  as  assignee,  but 
as  personal  representative  of  the  lessee.  An  action  at  the  suit  of  the 
assignee  of  the  reversion  is  maintainable  in  some  cases  at  common 
law;  in  others,  under  the  statute  of  the  32  Hen.  8.  I  rather  think 
that  this  case  belongs  to  the  former  class.  ^The  lease  contains  a  red- 
dendum, and  whatever  services  or  suits  are  thereby  reserved  partake 
of  the  character  of  rent.  Now,  one  of  the  services  to  be  rendered  to 
the  lessor  in  this  case  is,  that  the  lessee  shall  grind  all  the  corn  grown 
upon  the  demised  premises  at  the  lessor's  mill.  It  is  true  that  rent  goes 
with  the  reversion  of  the  land  in  respect  of  which  it  is  reserved.  But 
in  this  case,  at  the  time  of  granting  the  lease,  the  lessor  was  seised  in 
fee  of  the  mill,  as  well  as  of  the  reversion  of  the  premises  devised; 
and,  therefore,  so  long  as  the  property  in  the  mill  and  the  reversion  of 
the  demised  premises  continued  to  be  in  the  same  person,  the  suit  to 
the  mill  would  continue  to  be  a  suit  due  to  the  owner  of  the  reversion 
of  the  devised  premises,  and  would,  therefore,  in  that  respect,  be  in 
the  nature  of  a  rent.  It  is  by  no  means  unusual  for  the  owner  of  a 
mansion  and  estate  to  stipulate  with  his  tenants  that  they  should  carry 
coals  to  his  mansion,  and  perform  other  similar  services,  as  long  as 
the  ownership  of  the  mansion  and  the  estate  continues  in  the  same 
person,  those  services  are  in  the  nature  of  rent,  to  be  rendered  to  the 
reversioner  of  the  lands  demised.  Now,  here,  the  plaintiff  is  the  re- 
versioner of  the  thing  demised,  and  also  owner  of  the  mill.  In  the 
case  cited  from  the  42  Ed.  3,  the  prior  and  his  successors  took  no  in- 
terest in  the  land,  yet  the  covenant  to  sing  in  the  chapel  was  held  to 
run  with  the  land.  Here  the  covenantor  is  tenant  of  land  to  the  cove- 
nantee, and  the  suit  to  be-  done  to  the  mill  is  in  respect  of  the  land  de- 
mised. It  is  not  necessary  for  us  to  decide  what  the  case  would  be  if 
the  ownership  of  the  land  demised  and  the  mill  had  been  severed. 
Here  the  lessor  continued  owner  of  the  reversion  of  the  demised  prem- 
ises and  of  the  mill  from  the  time  of  granting  the  lease  till  the  time 
of  his  death,  and  the  plaintiff,  as  his  devisee,  then  became  entitled  to 
both,  and  now  continues  so.  My  judgment  is  founded  entirely  on  the 
unity  of  title  to  the  reversion  of  the  land  demised  and  to  the  mill. 

HoLROYD,  J.  The  case  cited  from  the  Year-Books  of  the  42  Edw. 
3,  seems  to  me  to  govern  the  present,  and  is  much  stronger.  I  think 
this  is  a  covenant  running  with  the  land  at  common  law.  Here  the 
close  was  leased  to  the  lessee,  his  executors,  administrators,  and  as- 
signs, yielding  the  rents,  and  doing  the  suits  and  services  therein  men- 

2  2  The  opinion  of  Best,  J.,  is  omitted. 


366  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

tioned.  The  suits  and  services  are  to  be  rendered  by  the  lessee,  his 
executors,  administrators,  and  assigns,  to  whom  the  lands  are  leased ; 
and  this  suit  is  to  be  rendered  to  the  mill  of  the  lessor,  his  heirs  and 
assigns ;  so  that  it  appears  to  have  been  the  intention  that  the  assignees 
of  the  lessor  and  lessee  should  be  bound,  for  they  are  expressly  nam- 
ed, and  that  suit  should  be  done  to  the  mill  as  long  as  it  continued  to 
be  the  property  of  the  lessor,  his  heirs  or  assigns.  It  has  been  said,  that 
the  thing  to  be  done  does  not.  affect  the  land.  But  it  affects  the  profits 
of  the  land,  and,  generally  speaking,  they  are  considered  the  same  thing 
as  the  land  itself ;  for  if  the  lessee  in  this  case  had  had  a  mill  of  his 
own,  he  would  still  have  been  bound  to  grind  the  corn  grown  upon  the 
demised  premises  at  the  lessor's  mill,  and  the  price  paid  for  the  grind- 
ing of  such  corn  would  be  in  the  nature  of  a  varying  rent  to  the  lessor, 
and  a  deduction  from  the  profits  of  the  lessee.  But  it  is  said  that  as 
the  thing  required  to  be  done  by  the  covenant  is  not  to  be  done  upon 
the  land  demised,  but  upon  other  land  which  might  or  might  not  con- 
tinue to  be  the  land  of  the  lessor,  it  does  not,  therefore,  respect  the  land 
demised,  and,  consequently,  that  the  assignee  cannot  take  advantage  of 
the  covenant.  I  am  of  opinion,  however,  that  inasmuch  as  the  thing 
to  be  done  is  to  be  done  at  a  mill  which  belonged  to  the  lessor  at  the 
time  of  making  the  lease,  and  which  has  always  continued  to  belong  to 
the  owner  of  the  reversion  of  the  land  demised,  that  the  covenant  to 
be  implied  from  the  reddendum  is  in  the  nature  of  a  covenant  to  ren- 
der a  rent,  and,  consequently,  that  it  is  a  covenant  that  runs  with  the 
land.  It  is  said,  that  it  is  not  in  the  nature  of  a  rent,  because  it  will  not 
follow  the  reversion,  for  if  the  property  in  the  mill  and  the  reversion 
of  the  demised  premises  became  severed,  the  service  must  be  rendered 
to  the  owner  of  the  mill,  and  not  to  the  owner  of  the  reversion  of  the 
demised  premises.  As  long,  however,  as  the  mill  and  the  reversion  of 
the  demised  premises  belong  to  the  same  person,  the  suit  to  the  mill  is 
a  service  to  be  rendered  to  the  reversioner  of  the  demised  premises ; 
and  so  long,  therefore,  it  would  follow  the  reversion,  and  in  that  re- 
spect partake  of  the  nature  of  rent.  Now  here,  at  the  time  of  grant- 
ing the  lease,  the  lessor  was  seised  in  fee  of  the  land  demised,  and  of 
the  mill,  and  continued  so  seised  of  the  latter,  and  of  the  reversion  in 
the  former,  until  his  death,  when  his  interest  in  both  vested  in  the  plain- 
tiff, as  devisee.  From  the  time  of  granting  the  lease  to  the  present 
time,  the  grinding  of  the  corn  at  the  mill  was  in  the  nature  of  a  rent  to 
the  reversioner,  issuing  out  of  and  rendered  in  respect  of  the  demised 
premises.  For  these  reasons,  it  appears  to  me  that  the  assignee  may, 
under  the  circumstances,  take  advantage  of  the  covenant,  and,  conse- 
quently, that  the  plaintiff  is  entitled  to  the  judgment  of  the  Court. 
Judgment  for  the  plaintiff.-^ 

23 A  covenant  to  pay  rent  binds  the  assignees  of  tlie  lessee  and  inures  to 
the  assignees  of  the  lessor.  Attoe  v.  Hemmings,  Bulst.-  2S1  (1615),  post,  p. 
404;  Stevenson  v.  Lambard,  2  East,  575  (1802);  Webster  v.  Nichols.  104  111. 
IGO  (1882) ;  Jones  v.  Gundrim,  3  Watts  &  S.  <ra,)  531  (1842).     Compare  lu- 


Cy»'^.^-e..^*'^.tu<j>/^     --^     .^^^ 


' '-vc/^^^^c^^    ,/i^. '    ^^    • '^^ . 


Ch.  4)  LEG  AL  ENFORCEMENT  OF  COVENANTS  367 

GOWER  V.  POSTMASTER  GENERAL. 

(Chancery  Division,  1S87.    57  Law  T.  N.  S.  527.) 

[Action  of  covenant  by  Mary  H.  Gower,  Henry  S.  Sanderson,  and 
W.  E.  Sanderson,  as  executors  of  Edward  Henry  Sanderson,  who  was 
the  executor  of  Edward  Sherman.  Sherman  had  been  the  owner  of  a 
long-term  lease,  which  on  his  death  had  passed  to  the  respective  per- 
sonal representatives  above  mentioned.  The  leases  to  the  Great  North- 
ern Railway  Company,  and  t6  East,  referred  to  in  the  court's  opinion, 
had  been  made  by  Edward  Henry  Sanderson.] 

Kay,  J.  This  is  a  very  short  point,  but  a  very  curious  one ;  and  the 
argument  has  been  an  interesting  one  to  me.  I  confess  that  I  did  not 
see  the  difficulty  until  it  was  put  by  the  Attorney  General  and  Mr. 
Simpson.  It  seems  that,  on  the  8th  May,  1869,  certain  lessors  granted 
a  lease  to  a  Mr.  East  of  premises  in  the  city  of  London,  which  are  de- 
scribed as  being  messuages  and  tenements.  In  the  description  there 
is  this  exception :  "Save  and  except  out  of  the  demise  intended  to  be 
hereby  made  all  such  parts  of  the  premises  firstly  hereinbefore  de- 
scribed as  are  demised  by  an  indenture  of  underlease,  dated  the  20th 
Dec,  1867,  and  expressed  to  be  made  between"  the  lessors  and  the 
Great  Northern  Railway  Company.  That  was  a  lease  for  a  term  which 
would  expire  before  the  expiry  of  the  term  granted  by  the  lease  to 
which  I  am  now  referring — viz.,  the  lease  to  Mr.  East.  But  there  can 
be  no  doubt  whatever  that  these  excepted  parts  are  not  included  for 
any  purpose  of  demise  in  that  lease  to  Mr.  East.  I  am  told  that  they 
were  some  portions  of  the  tenements,  rather  irregularly  marked  out, 
which  jutted  into  the  tenement  which  Was  let  to  Mr.  East.  The  lease 
to  Mr,  East  contained  a  covenant  on  which  the  present  question  arises. 
Mr.  East  thereby,  for  himself,  his  heirs,  executors,  administrators,  and 
assigns,  covenanted  with  Edward  Henry  Sanderson,  one  of  the  les- 
sors, as  such  executor  as  aforesaid,  his  executors,  administrators,  and 
assigns.  Pausing  there,  there  can  be  no  sort  of  doubt,  as  Mr.  Simp- 
son pointed  out,  that  the  word  "assigns"  there  means  assigns  of  the  re- 
version of  the  demised  premises,  that  is,  the  reversion  of  the  premises 
demised  to  Mr.  East,  and  not  assigns  of  anything  else.  That  is  be- 
yond all  power  of  argument.  It  seems  to  me  too  plain  for  anything. 
Then  the  covenant  runs  thus :  That  he,  his  executors,  administrators, 
or  assigns,  would,  during  the  several  terms  thereby  granted,  pay  the 
yearly  rent,  and  all  taxes,  etc.,  in  respect  of  the  demised  premises,  and 
also  would,  during  the  term  thereby  granted  in  respect  of  the  prem- 
ises firstly  and  secondly  thereinbefore  described  and  thereby  demised, 
"pay  all  such  sums  (not  exceeding  in  any  one  year  the  sum  of  ilOO.) 
as  shall  for  the  time  being  be  payable  by  the  said  Edward  Henry  San- 

diana  Nat.  Gas.  Co.  v.  Hintnn,  159  Ind.  398,  64  N.  E.  224  (1902),  post,  p.  426, 
note  65.  Harbert  v.  Hope  Nat.  Gas  Co.,  76  W.  Va.  207,  84  S.  E.  770,  L.  R.  A. 
1915E,  570  (1915),  post,  p.  426,  note  65. 


368  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

derson,  as  such  executor  as  aforesaid,  his  executors,  administrators,  or 
assigns,  on  account  of  the  hlce  taxes,  tithes,  rates,  assessments,  and 
outgoings  in  respect  of  the  premises  comprised  in  and  demised  b}'  the 
said  indenture  of  underlease  of  the  20th  Dec,  1867."    That  is  to  say, 
the  premises  which  before  were  excepted  and  were  not  demised  by  this 
lease.     Now,  before  I  say  anything  more  about  the  construction  of  the 
covenant,  this  is  what  has  happened:    Mr.  East  has  assigned  his  in- 
terest in  the  lease  to  Her  Majesty's  Postmaster  General,  and  the  ques- 
tion is  whether  the  Postmaster  General  is  bound  by  this  covenant  at  all. 
It  is  for  the  payment — for  tlie  moment  I  do  not  say  by  wiiom — of  taxes, 
tithes,  rates,  assessments,  and  outgoings.     The  covenant  is  to  pay  all 
such  sums  as  the  lessor,  his  executors,  administrators,  or  assigns,  may 
have  to  pay  on  account  of  the  like  taxes,  tithes,  and  so  forth,  in  respect 
of  the  premises  not  thereby  demised.     That  is  to  say,  tlie  lessor  may 
have  to  pay  taxes  in  respect  of  other  premises  which  are  not  thereby 
demised,  and  the  lessee  covenants  to  pay — I  do  not  say  at  present  to 
whom — whatever  the  lessor  may  have  to  pay  in  respect  of  those  taxes 
on  other  premises  to  the  extent  of  £100.  a  year.    Now,  is  that  or  is  it 
not  a  collateral  covenant — a  covenant  to  pay  a  collateral  sum  of  money? 
If  it  were  meant  to  make  that  sum  payable  by  whomsoever  this  lease 
may  be  assigned  to,  the  matter  would  have  been  easy.     It  might  have 
been  reserved  as  rent,  and  then  of  course  anybody  to  whom  the  lease 
was  assigned  would  have  to  pay  it.    But  it  is  not  reserved  as  rent.    A 
rent  is  reserved,  and  it  is  a  very  large  one,  and  this  is  a  mere  cove- 
nant that  the  lessee  will  pay  in  respect  of  taxes,  &c.  imposed  upon 
other  property  not  included  in  the  lease,  the  amount  of  those  taxes  be- 
ing, at  least,  £100.  a  year.     I  cannot  conceive  anything  more  entirely 
collateral.     It  is  a  collateral  sum — a  sum  payable  in  respect  of  other 
property  which  the  lessee  says  he  will  covenant  with  the  lessor  to  pay. 
Does  that  run  with  the  land  or  not?    One  cannot  go  to  a  better  au- 
thority than  Spencer's  Case  (5  Co.  Rep.  16 ;   1  Sm.  L.  Cas.),  where  the 
proposition  relied  on  was  this :    "Although  the  covenant  be  for  him  and 
his  assigns" — that  is,  although  assigns  are  expressed — "yet  if  the  thing 
to  be  done  be  merely  collateral  to  the  land,  and  doth  not  touch  or  con- 
cern the  thing  demised  in  any  sort,  there  the  assignee  shall  not  be  charg- 
ed.   As  if  the  lessee  covenants  for  him  and  his  assigns  to  build  a  house 
upon  the  land  of  the  lessor  which  is  no  parcel  of  the  demise,  or  to  pay 
any  collateral  sum  to  the  lessor,  or  to  a  stranger,  it  should  not  bind  the 
assignee,  because  it  is  merely  collateral,  and  in  no  manner  touches  or 
concerns  the  thing  that  was  demised,  or  that  is  assigned  over;    and 
therefore  in  such  case  the  assignee  of  the  thing  demised  cannot  be 
charged  with  it  no  more  than  any  other  stranger." 

Now,  it  was  attempted  to  be  argued  in  the  present  case  that  these 
taxes,  tithes,  and  so  forth,  although  no  doubt  in  respect  of  a  part  of 
the  property  which  was  not  demised,  yet  they  possibly  might  be  charg- 
ed on  the  whole  tenement.  That  point,  however,  is  not  raised  by  the 
special  case  at  all.     What  I  have  to  deal  with  is  distinctly  a  case  in 


Ch.  4)  LEGAL    ENFORCEMENT    OF    COVENANTS  369 

which  the  taxes,  tithes,  &c.,  are  separately  payable  in  respect  of  the 
property  which  is  not  demised.  That  is  the  only  case  I  have  to  deal 
with,  so  far  as  anything  appears  in  the  special  case  which  I  am  asked 
to  determine.  The  taxes,  tithes,  &c.,  are  separately  payable  by  the  oc- 
cupier in  respect  of  the  undemised  part  of  the  tenement.  I  mean  un- 
demised  by  this  lease.  Therefore,  it  comes  within  tlie  operation  of  the 
rule  in  Spencer's  Case  (ubi  supra).  Of  course,  the  lessee  covenanted, 
but  he  is  not  before  me ;  the  only  person  brought  before  me  is  his  as- 
sign. That  assign  says  that  Spencer's  Case  decides,  under  circumstanc- 
es like  these  (this  being  a  covenant  for  payment  of  a  sum  entirely  col- 
lateral to  this  particular  demised  property),  that  the  covenant  does  not 
run  with  the  land,  and  therefore  that  it  does  not  bind  him.  I  confess 
that  he  satisfies  me;  and  I  do  not  see  any  answer  to  it.  It  seems  to 
me  that  that  is  conclusive.  There  are  other  questions,  and  certainly 
very  formidable  questions,  and  one  is  this,  which  was  suggested  by  Mr. 
Simpson,  that  the  word  "assigns"  in  both  parts  of  this  lease  has  the 
same  meaning.  At  present  I  see  no  answer  to  that.  However,  I  ought 
not  to  prejudice  those  questions,  because  Mr.  Ince  has  not  replied  on 
that  part  of  the  case,  and  therefore  I  do  not  express  any  opinion  upon 
them.  This  being,  as  I  have  said,  a  case  that  is  completely  governed 
by  the  rule  in  Spencer's  Case  (ubi  supra),  the  consequence  is,  that  the 
Postmaster  General  is  not  liable  under  the  covenant,  because  it  does 
not  run  so  as  to  bind  him;  and  the  plaintiffs  must  pay  the  costs  of 
this  special  case.* 


NORTHERN  PAC.  RY.  CO.  v.  McCLURE  et  al. 

(Supreme  Court  of  North  Dakota.  1S99.     9  N.  D.  73,  81  N.  W.  52,  47  L.  K. 

A.  149.) 

[The  Northern  Pacific  Railroad  Company  on  October  1,  1892,  leased 
to  the  defendant  McClure  for  a  period  of  five  years,  a  piece  of  land 
adjacent  to  its  tracks  at  a  rental  of  $10  per  annum.  The  lease  contain- 
ed the  covenant  which  is  stated  in  the  opinion  of  the  court.  The 
Northern  Pacific  Railroad  Company  was  reorganized,  and  transferred 
all  its  property  to  a  new  corporation,  the  Northern  Pacific  Railway 
Company.  Certain  machinery  stored  upon  the  leased  premises  with 
the  consent  of  the  lessee  was  destroyed  by  a  fire  caused  by  the  plain- 
tiff. The  owner  of  the  machinery  recovered  judgment  against  the 
plaintiflf  herein  for  the  loss ;  the  plaintiff  defending  the  action  after 
having  requested  the  defendant  herein  so  to  do.] 

Young,  J.^*     This  action  is  brought,  upon  the  indemnity  covenant 

*A  covenant  by  the  lessee  to  pay  taxes  or  assessments  on  the  demised 
premises  is  enforceable  by  the  assignee  of  the  lessor  against  the  assignee  of 
the  lessee,  Post  v.  Kearney.  2  N.  Y.  394,  51  Aa.  Dec.  303  (1S49).  See,  also, 
Wills  V.  Summers,  post,  p.  393 :   Mason  v.  .Smith,  post,  p.  389. 

2  4  Part  of  the  opinion  is  omitted. 

BiG.RlGHTS — 24 


370  RIGHTS   IN  THE   LAND  OF   ANOTHER  (Part  2 

in  the  lease  from  the  Northern  Pacific  Railroad  Company  to  the  de- 
fendants, to  recover  the  amount  disbursed  by  plaintiff  in  paying  the 
judgment  referred  to;  also,  the  costs  incurred  in  defending  the  action 
wherein  the  judgment  was  rendered.  In  the  lease  in  question  the 
Northern  Pacific  Railroad  Company  is  named  as  the  first  party,  and 
the  defendants  as  second  parties.  The  portion  of  said  lease  upon 
which  plaintiff  relies  is  in  the  following  language:  "The  said  parties 
of  the  second  part  shall,  and  do  hereby,  assume  all  risks  of  loss,  dam- 
age, or  destruction  of  any  property,  building  or  contents,  coal,  lumber, 
or  material,  that  may  be  upon,  or  in  proximity  to,  the  grounds  in- 
cluded in  this  lease,  by  the  parties  of  the  second  part  or  by  any  other 
jiarty,  occasioned  by  fire  or  sparks  from  locomotive  engines,  or  other 
cause,  or  by  neglect,  carelessness,  or  misconduct  of  any  person  in 
the  employment  or  service  of  the  said  party  of  the  first  part ;  it  being 
the  intent  hereof  that  the  said  parties  of  the  second  part  shall  and  do 
release,  forever  discharge,  save  and  hold  harmless,  the  said  party  of 
the  first  part  from  all  damages  and  claims  for  losses  or  injury  suffered 
or  sustained,  or  that  may  be  suffered  or  sustained,  to  said  property, 
or  to  any  other  property  on  or  near  said  demised  premises."  No  ques- 
tion is  raised  as  to  the  validity  of  the  contract  of  lease  as  a  whole,  or 
as  to  the  foregoing  covenant.  On  the  contrary,  counsel  for  defendants 
expressly  concede  in  their  brief  that  the  agreement  of  defendants  to 
save  and  hold  the  lessor  harmless  is  a  binding  agreement,  and  that  the 
lessor  might  have  successfully  maintained  an  action  against  them  for 
recovery  thereon  for  a  breach  of  the  same. 

But  it  is  contended  that  this  covenant  did  not  pass  to  the  plaintiff, 
as  the  assignee  and  grantee  of  the  lessor,  and  that  it  cannot",  therefore, 
recover  thereon.  Defendants'  whole  contention  is  based  upon  the  last 
proposition.  Did  the  covenant  to  save  the  lessor  hannless  against 
claims  for  damages  for  losses  of  property  upon  the  demised  premises 
pass  to  the  new  corporation,  the  Northern  Pacific  Railway  Company, 
the  plaintiff  in  this  action?  If  this  covenant  of  the  lessees  did  pass 
to  the  plaintiff  by  the  transfer  of  the  lease  to  it  by  the  lessor,  or  by 
the  grant  to  it  of  the  right  of  way  which  is  the  subject  of  the  lease, 
then  it  is  patent  that  plaintiff  has  stated  a  cause  of  action  entitling  it 
to  the  relief  demanded ;  for  it  is  sufficiently  alleged  that  it  has  suffer- 
ed such  a  loss  as  entitles  it  to  a  recovery  under  the  covenant  referred 
to.  The  loss  by  fire  occurred  about  eight  months  after  the  transfer  of 
the  land  and  lease  by  the  old  corporation  to  the  plaintiff.     *     *     * 

In  this  state  some  of  the  uncertainty  as  to  the  rights  and  remedies 
of  grantees  and  devisees  of  a  lessor  against  tenants  of  the  latter  is 
removed  by  direct  legislation.     *     *     * 

The  supreme  court  of  Wisconsin,  in  construing  their  statute  (which 
is  substantially  like  sections  3366  and  3367  [of  the  North  Dakota 
statute],  supra,  and  wholly  so,  in  effect,  when  the  two  sections  are 
construed  together)  in  Winterfield  v.  Stauss,  24,  Wis.  394,  said :  "The 
effect  of  this  statute  is  to  cause  the  covenants  entered  into  on  the  part 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  371 

of  the  lessee,  or  the  conditions  upon  which  he  holds,  to  run  with  the 
land,  and  to  pass  by  conveyance  or  assignment  to  the  assignee  of  the 
lessor,  or  of  the  reversion,  so  that  such  assignee  may  at  once,  and 
without  attornment  by  the  lessee,  take  advantage  of  any  covenant  or 
condition  contained  in  the  lease,  the  same  as  the  lessor  himself  might 
have  done.  The  consent  of  the  lessee,  or  what  was  called  'attorning,' 
is  no  longer  required,  as  at  the  common  law,  for  this  purpose ;  but 
the  assignee  succeeds  immediately  to  all  the  rights  and  remedies  which 
the  lessor  had,  or  might  have  had,  if  no  assignment  had  been  made.  In 
other  words,  the  assignee  becomes  himself  the  landlord,  standing  in 
the  place  of  the  lessor,  and  enjoying  all  his  rights  and  privileges  under 
and  by  virtue  of  the  lease.  *  *  *  The  assignee  here  has  all  the 
rights  and  remedies  of  the  lessor.  He  becomes  the  lessor  by  virtue 
of  the  assignment,  and  stands  in  the  relation  of  landlord  to  the  tenant 
in  possession  under  the  lease."  We  think  the  interpretation  of  the  Wis- 
consin court,  with  the  exception  hereafter  noted,  is  entirely  sound, 
and  evidently  conforms  to  the  legislative  intention  in  enacting  the 
remedial  statutes,-  which  was  to  place  the  assignees  of  both  lessors 
and  lessees  in  the  same  position  relative  to  the  lease  which  their  as- 
signors had,  and  to  give  to  them  the  same  rights  and  the  same  remedies. 
*     *     * 

Our  conclusion  is  that  the  covenant  in  question  in  the  case  at  bar 
passed  to  the  plaintiff,  and  invested  him  with  the  same  rights  there- 
under which  the  old -corporation  had.  In  reaching  this  conclusion,  we 
are  not  controlled  by  the  fact  simply  that  it  is  a  covenant  contained  in 
a  lease,  for,  in  our  opinion,  that  is  not  enough ;  and  in  this  respect  we 
think  the  language  of  the  Wisconsin  court  in  Winterfield  v.  Stauss, 
supra,  is  too  broad,  if  it  was  intended  to  mean  that  all  covenants  of 
the  lessee  with  the  lessor  passed  to  the  assigns  of  the  latter,  regardless 
of  the  nature  of  the  covenants.  For  it  must  be  conceded  that  cove- 
nants and  stipulations  may  be,  and  often  are,  inserted,  which  are 
wholly  foreign  to  the  subject-matter  of  the  lease,  and,  while  they  are 
binding  between  the  immediate  parties  thereto,  are  so  disconnected  with 
the  estate  that  they  do  not  pass  by  assignment,  but  remain  as  cove- 
nants between  the  original  parties.  But  the  covenant  here  involved 
is  not  of  that  nature.  We  think  it  is  a  covenant  directly  connected  with 
the  estate,  and  within  the  meaning  of  our  statutes.  While  it  is  proba- 
bly true  that  it  is  not  an  agreement  to  pay  "rent,"  as  that  word  is 
commonly  understood,  yet  it  has  to  do  with  determining  the  compen- 
sation which  the  lessor  is  to  receive  for  the  use  of  the  premises.  It  is 
perfectly  apparent  that  the  agreement  to  pay  $10  per  year  as  rent 
was  merely  a  nominal  sum,  and  that  the  real  consideration  for  the 
use  of  the  lands  was  this  particular  agreement  that  the  lessor  should 
not  suffer  loss  from  damage  suits  brought  to  recover  for  the  destruc- 
tion of  property  upon  the  premises  so  leased  to  the  defendants. 

If  counsel's  contention  were  true,  that  this  covenant  did  not  pass, 
then  the  only  obligation  the  defendants  would  owe  the  plaintiff  for  the 


372  RIGHTS  IN  THE   LAND   OF  ANOTHER  (Part  2 

use  of  the  property  is  the  payment  of  the  nominal  rent  of  $10  per  year, 
and  that  would  be  the  extent  of  their  liability ;  for  it  is  clear  that  they 
can  incur  no  liability  to  the  old  corporation,  in  fact  or  in  law.  For,' 
by  reason  of  the  sale  of  all  of  its  property  to  the  plaintiff,  it  cannot 
be  the  moving  agent  in  negligently  setting  fire  to  property  on  the 
premises  from  which  alone  the  liability  would  arise.  Further,  none  of 
the  covenants  of  the  lease  have  been  binding  upon  the  lessor  since 
August  18,  1896;  for  on  that  day  all  of  its  rights  were  transferred  to 
the  plaintiff,  and  the  defendants  attorned  to  it  as  their  landlord  under 
the  lease  in  question.  The  legal  effect  of  these  acts  was  a  surrender 
of  all  of  the  rights  which  the  lessor  had  in  the  lease  to  the  plaintiff 
which  were  connected  with  the  estate,  and  an  assumption  of  all  of 
the  obligations  therein  by  the  lessee  as  thereafter  binding  upon  him 
in  favor  of  his  new  landlord.  Moreover,  this  was  in  accordance  with 
the  intention  of  the  original  parties,  and  their  express  agreement  in 
the  lease,  contained  in  the  following  language :  "It  is  further  mutually 
covenanted  and  agreed  by  and  between  the  said  parties  hereto  that 
the  covenants,  agreements,  and  conditions  herein  contained  shall  be 
binding  upon  the  executors,  administrators,  and  assigns  of  the  said 
parties  of  the  second  part,  and  the  successors  and  assigns  of  the  said 
party  of  the  first  part." 

The  covenants  and  conditions  which  are  thus  expressly  agreed  to 
be  binding  upon  the  assigns  of  the  lessor  must  be  considered  as  bind- 
ing upon  the  lessee,  also,  in  order  to  effect  mutuality;  and  such, 
without  doubt,  was  the  intention  of  the  parties  in  making  the  stipula- 
tion. It  would  also  seem  that  the  covenant  in  question  was  one  which 
directly  affected  the  value  of  the  property.  It  certainly  would  dur- 
ing the  five  years  in  which  the  lease  run.  For,  without  this  covenant 
to  save  the  lessor  harmless,  the  lease  of  the  property  would,  as  this 
case  shows,  have  been  productive  of  loss,  instead  of  profit,  to  the  lessor 
or  its  assigns.  So,  too,  the  agreement  to  indemnify  the  lessor  was  one 
of  the  conditions,  and  the  most  important  one,  under  which  the  de- 
fendants held  the  property,  and  was  extremely  valuable  to  the  as- 
signee of  the  lessor,  and  one  which,  as  we  have  seen,  was  valueless 
to  the  lessor  after  its  assignment  of  the  lease,  both  in  fact  and  by 
reason  of  its  surrender.  Covenants  to  indemnify  and  hold  harmless, 
like  that  we  have  been  considering,  are  not  entirely  new  to  the  courts. 
They  have  been  held  to  be  legitimate  provisions,  and  have  been  up- 
held as  not  against  public  policy.  Hartford  Fire  Ins.  Co.  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.,  17  C.  C.  A.  62,  70  Fed.  201,  30  L.  R.  A.  193. 
But  we  have  not  been  able  to  find  an  adjudication  upon  the  question 
whether  this  particular  kind  of  a  covenant  runs  with  the  land,  and 
passes  to  the  assigns  of  the  lessor. 

Our  conclusion,  however,  is,  for  the  reasons  stated,  that  this  cove- 
nant passed  to  the  plaintiff,  and  invested  it  with  the  same  rights  of 
protection  against  losses  by  it,  and  to  the  same  extent  and  in  the 


Ch.  4)  LEGAL    ENFORCEMENT   OF    COVENANTS  373 

same  manner  as  the  lessor  might  have  asserted  had  there  been  no  as- 
signment of  the  lease.     The  demurrer  was  properly  overruled. 
Judgment  affinned.    All  concur.-'^ 


(b)  Covenants  by  the  Lessor 
JOURDAIN  V.  WILSON. 

(Court  of  King's  Bench,  1S21.     4  Barn.  &  Aid.  266.) 

Covenant  by  the  assignee  of  the  lessee  against  the  reversioner.  By 
the  lease  two  messuages  were  demised.  The  breach  assigned  was  up- 
on the  following  covenant :  "And  the  said  William  Inwood,  the  land- 
lord, for  himself,  his  executors,  &c.  doth  covenant,  promise,  and  agree 
to  and  with  the  said  lessee,  his  executors,  &c.,  to  supply  the  said  two 
messuages  or  tenements  and  premises  with  a  sufficient  quantity  of  good 
water,  at  the  rate  of  three  guineas  per  annum  for  each  house."  To 
this  declaration  there  were  several  pleas,  to  some  of  which  the  plain- 
tiff demurred ;  and  the  question  argued  was,  whether  this  covenant  ran 
with  the  land. 

Abbott,  C.  J.  By  this  lease  the  lessor  covenants  to  supply  the 
messuages  and  tenements  demised  with  a  sufficient  quantity  of  good 
water  at  the  rate  of  three  guineas  per  annum  for  each  house.  The  lease 
does  not  specifically  point  out  the  particular  mode  by  which  the  water 
is  to  be  supplied :  whether  by  pipes,  by  collecting  the  water  in  cis- 
terns, or  by  carrying  it  to  the  premises  by  buckets  ;  but  it  is  quite  clear, 
that  the  covenant  cannot  be  satisfied  unless  a  sufficient  quantity  of  good 
water  is  brought  upon  the  premises  during  the  term.  This  is,  there- 
fore, a  cove*nant  which  respects  the  premises  demised  and  the  man- 
ner of  enjoyment,  and  I  have  no  doubt,  therefore,  that  it  is  a  covenant 
which  runs  with  the  land,  and  that  the  assignee  may  sue  the  reversion- 
er for  the  breach  of  it. 

Judgment  for  the  plaintiff.^* 

2SA.  leased  laud  and  a  factory  to  X.  by  indenture.  X.  covenanted  with 
A.  to  save  harmless  the  overseers  of  the  poor  of  the  parish  from  all  charges 
incurred  by  reason  of  his  hiring  as  laborers  in  the  factory  any  persons  who 
should  thereby  gain  a  settlement  in  the  town.  A.  died.  L/ater,  during  the 
term  of  the  lease,  X.  broke  the  covenant.  Held,  A.'s  executor  has  an  action 
against  X.     Walsh  v.  Fussel,  6  Bing.  163   (1829). 

2«Acp.:  Covenant  to  supply  wood,  assignee  of  lessee  against  lessor.  Palm- 
er V.  Edwards,  1  Doug.  187n  (1783) ;  covenant  to  exterminate  rabbits,  lessee 
against  assignee  of  lessor,  Sturgeon  v.  Wingfield,  15  M.  &  W.  224  (1846) ; 
rovenant  to  supply  heat,  lessee  against  assignee  of  lessor,  Storandt  v.  Vogel 
&  Binder  Co.,  140  App.  Div.  671,  125  N.  Y.  Supp.  568  (1910) ;  covenant  to 
supply  servant  to  care  for  demised  premises,  assignee  of  lessee  against  as- 
signee o«  lessor,  Barnes  v.  City  of  London  R.  E.  Co.,  [1918]  2  Ch.  18  (semble). 


374  RIGHTS   IN   THE   LAND   OF  ANOTHER  (Part  2 

WOODALL  V.  CLIFTON. 

(Cpurt  of  Appeal,  1905.     [1905]  2  Cb.  257.) 

By  a  lease  dated  July  4,  1867,  a  piece  of  land  of  about  six  acres  at 
Chislehurst  was  demised  by  the  then  owner  in  fee  to  the  lessee  for  a 
term  of  ninety-nine  years  from  June  24,  1866,  at  the  yearly  rent  of 
£142.  The  lease  contained  the  following  clause:  "Provided  always 
and  it  is  hereby  agreed  and  declared  that  in  case  the  lessee,  his  heirs 
or  assigns,  shall  at  any  time  during  the  said  term  become  desirous  of 
purchasing  the  fee  simple  of  and  in  the  said  lands  and  premises  here- 
by demised,  or  any  portion  thereof  not  being  less  than  one  acre  (unless 
by  previous  purchase  the  land  remaining  subject  to  this  present  demise 
shall  be  less  than  one  acre),  at  and  after  the  rate  of  £500  per  acre,  and 
such  further  sum  for  the  timber  thereon  as  shall  be  ascertained  by  a 
fair  valuation  thereof,  and  upon  receipt  of  the  amount  of  the  purchase 
money  for  the  same,  the  said  [lessor],  his  heirs  or  assigns,  shall  and 
will  execute  a  conveyance  or  other  assurance  of  the  said  land  and  prem- 
ises with  the  timber  thereon  in  favour  of  the  said  [lessee],  his  heirs 
and  assigns,  upon  the  same  terms  as  to  title  and  otherwise  as  the  said 
[lessee]  and  other  purchasers  of  portions  of  the  Camden  Park  es- 
tate have  hitherto  completed  their  purchases." 

By  another  lease  dated  July  14,  1869,  another  piece  of  land  of  about 
four  acres  in  Chislehurst  and  Bromley  was  demised  by  the  same  les- 
sor to  the  same  lessee  for  a  term  of  ninety-nine  years  at  the  yearly  rent 
of  £112.  This  lease  contained  a  proviso  similar  in  its  terms  to  that 
contained  in  the  lease  of  1867,  except  that  the  option  to  purchase  was 
reserved  to  the  lessee,  his  "executors,  administrators,  or  assigns,"  in- 
stead of  to  his  "heirs  or  assigns,"  and  that  the  price  per  acre  was  to 
be  £600. 

The  lands  comprised  in  and  demised  by  these  two  leases  were  now 
vested  in  the  plaintiff,  an  assign  of  the  original  lessee,  for  the  residues 
unexpired  of  the  terms  thereby  respectively  granted,  and  he  claimed 
that,  as  assignee  of  the  two  terms,  he  was  entitled  to  the  benefit  of  both 
the  options,  if  the  same  were  valid  and  subsisting  options.  Subject  to 
the  leases  and  the  options  therein  contained  the  defendants,  who  were 
assigns  of  the  lessor,  were  the  owners  in  fee  simple  of  the  lands  com- 
prised in  the  leases. 

Notice  to  purchase  the  whole  of  the  premises  demised  by  the  two 
leases  had,  in  pursuance  of  the  terms  of  the  options,  been  given  by 
the  plaintiff  to  the  defendants,  but  the  defendants,  who  were  trustees, 
having  been  advised  that  the  options  were  invalid  as  against  them,  de- 
clined to  complete  the  purchase. 

The  plaintiff  thereupon  commenced  this  action  against  the  defend- 
ants, and  by  his  writ  claimed  a  declaration  that  the  two  options  to  pur- 
chase "are  valid  and  subsisting  options  and  have  been  duly  exercised 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  375 

by  the  plaintiff,  and  that  the  plaintiff  is  entitled  to  the  benefit  thereof, 
and  to  enforce  the  same  against  the  defendants." 

The  writ  also  claimed  that  "the  defendants  may  be  ordered  upon 
payment  by  the  plaintiff  to  the  defendants  of  the  purchase  money  pay- 
able in  accordance  with  the  terms  of  the  said  two  options  respectively 
to  execute  a  proper  conveyance  to  the  plaintiff  of  the  premises  subject 
to  the  said  two  options  respectively." 

[Judgment  below  was  for  the  defendants.    Plaintiff  appealed.] 

RoMER,  L,  J.,  read  the  following  judgment  of  the  Court  (Vaughan 
Williams,  Romer  and  Stirling,  L.  JJ.)  : 

A  contract  in  a  lease  giving  an  option  of  purchase  might  be  good, 
without  regard  to  the  provisions  of  the  statute  of  Henry  VIII,  as. 
binding  the  land  in  the  hands  of  the  heirs  or  assigns,  provided  it  did 
not  infringe  the  law  as  to  perpetuities.  It  would  not  be  the  less  a  bind- 
mg  contract  because  it  was  contained  in  a  lease.  But  in  the  present 
case  it  is  clear  that  the  plaintiff  cannot  succeed  on  such  a  ground.  Un- 
less the  covenant  or  proviso  giving  the  option  of  purchase  can  be  said 
to  run  with  the  land  by  virtue  of  the  provisions  of  the  statute,  then 
the  plaintiff  must  fail.  Now  undoubtedly  the  statute  is  in  its  wording 
very  wide,  but  it  has  long  been  held  that  some  limitations  must  be  im- 
plied; as;  for  example,  that  the  statute  does  not  apply  to  covenants 
which  do  not  touch  or  affect  the  land  demised,  or  to  assigns  where 
the  covenants  relate  to  things  not  in  esse,  and  "assigns"  are  not  ex- 
pressed to  be  bound.  The  question  in  the  present  case  is  whether  the 
statute  was  intended  to  cover,  or  can  be  construed  as  covering,  such 
a  covenant  or  proviso  as  we  have  now  to  consider,  so  as  to  make  the 
liability  to  perform  it  run  with  the  reversion.  We  have  come  to  the 
conclusion  that  that  question  must  be  answered  in  the  negative. 

The  covenant  is  aimed  at  creating,  at  a  future  time,  the  position  of 
vendor  and  purchaser  of  the  reversion  between  the  owner  and  the 
tenant  for  the  time  being.  It  is  in  reality  not  a  covenant  concerning  the 
tenancy  or  its  terms.  Properly  regarded,  it  cannot,  in  our  opinion,  be 
said  to  directly  affect  or  concern  the  land,  regarded  as  the  subject- 
matter  of  the  lease,  any  more  than  a  covenant  with  the  tenant  for 
the  sale  of  the  reversion  to  a  stranger  to  the  lease  could  be  said  to 
do  so.  It  is  not  a  provision  for  the  continuance  of  the  term,  like  a 
covenant  to  renew,  which  has  been  held  to  run  with  the  reversion, 
though  the  fact  that  a  covenant  to  renew  should  be  held  to  run  with 
the  land  has  by  many  been  considered  as  an  anomaly,  which  it  is  too 
late  now  to  question,  though  it  is  difficult  to  justify.  An  option  to  pur- 
chase is  not  a  provision  for  the  shortening  of  the  term  of  the  lease,  like 
a  notice  to  determine  or  a  power  of  re-entry  though  the  result  of  the 
option,  if  exercised,  would  or  might  be  to  destroy  the  tenancy.  It  is, 
to  our  minds,  concerned  with  something  wholly  outside  the  relation  of 
landlord  and  tenant  with  which  the  statute  of  Henry  VIII  was  deal- 
ing, and  allowing  such  a  provision  to  come  within  the  purview  of  the 
statute,  and  to  be  enforced  as  running  with  the  land,  would  lead  to 


376  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

very  anomalous  and,  to  our  minds,  most  undesirable  results  as  to  per- 
petuities, conversion,  and  otherwise,  which  this  Court  should  not  vali- 
date unless  it  is  obliged  to  do  so.  And  we  cannot  think  that  the  Court 
is  so  obliged  on  the  true  construction  and  effect  of  the  statute.  It  is 
strange  that  there  is  no  direct  authority  on  the  point.  There  are  cases 
where  the  option  has  been  exercised  by  the  tenant  and  accepted  by  the 
landlord,  and  subsidiary  questions  have  had  to  be  decided  which  nat- 
urally would  be  dealt  with  on  the  footing  that  what  had  already  been 
done  could  not  or  need  not  be  questioned  by  the  Court,  as,  for  example, 
In  re  Adams  and  Kensington  Vestry,  27  Ch.  D.  394.  But  such  cases 
are  really  of  no  assistance  for  the  decision  of  the  present  case.  In  our 
judgment  the  appeal  should  be  dismissed. 


HOLLANDER  et  al.  v.  CENTRAL  METAL  &  SUPPLY  CO. 

(Court  of  Appeals  of  Maryland,  1908.     109  Md.  131,  71  AtL  442,  23  L.  R.  A. 

[N.   S.]  1135.) 

Appeal  from  Circuit  Court  of  Baltimore  City;  Thos.  Ireland  Elliott, 
Judge. 

Suit  by  the  Central  Metal  &  Supply  Company  of  Baltimore  City 
against  Charles  S.  Hollander  and  others.  From  a  decree  for  plaintiff, 
defendants  appeal.    Affirmed  and  remanded. 

Thomas,  J.^^  The  Central  Metal  &  Supply  Company  of  Baltimore 
City,  "a.  corporation  duly  incorporated  under  the  laws  of  the  state  of 
Maryland,"  having  purchased  the  leasehold  estate  in  a  certain  lot  of 
land  in  Baltimore  city,  brought  this  suit  on  the  31st  day  of  May,  1907, 
against  the  appellants,  as  the  present  owners  of  the  reversion  in  said 
lot,  for  a  specific  performance  of  the  covenant  in  the  lease  of  the  les- 
sor, "her  heirs  and  assigns,"  upon  payment  of  the  amounts  specified 
therein,  to  convey  the  fee  to  the  lessees,  their  "heirs  and  assigns."  The 
bill  alleges  that  the  defendants,  Charles  Hollander  and  Elsie  Hollander, 
his  wife,  and  Lee  M.  Hollander,  are  nonresidents,  and  that  the  plain- 
tiff, in  January,  1907,  addressed  a  letter  to  these  defendants  notifying 
them  of  its  desire  to  redeem  the  ground  rent  under  the  lease,  and  pre- 
pared and  forwarded  to  them  for  execution  a  deed  from  them  to  the 
plaintiff  of  the  fee  in  said  lot,  which  they  refused  to  execute  on  the 
ground  that  "the  said  rent  is  not  redeemable."  [The  defendants  de- 
murred on  various  grounds.]     *     *     * 

The  next  ground  of  the  demurrer  is  that  the  covenant  to  convey  the 
fee  to  the  lessees,  "their  heirs  and  assigns,"  is  not  a  covenant  running 
with  the  land.  In  Glenn  v.  Canby,  24  Md.  127,  the  court  stated,  as  the 
established  doctrine,  "that  a  covenant  to  run  with  the  land  must  extend 
to  the  land,  so  that  the  thing  required  to  be  done  will  affect  the  quality, 
value,  or  mode  of  enjoying  the  estate  conveyed,  and  thus  constitute  a 

2  7  Part  of  the  opinion  is  omitted. 


Ch. 4)  LEGAL  EXFOKCEMENT  OF  COVENANTS  377 

condition  annexed  or  appurtenant  to  it;  there  must  also  be  a  privity 
of  estate  between  the  contracting  parties,  and  the  covenant  must  be 
consistent  with  the  estate  to  which  it  adheres,  and  of  such  a  character 
that  the  estate  will  not  be  defeated  or  changed  by  a  performance  of  it." 
This  is  the  doctrine  asserted  by  Mr.  Poe  in  1  Poe's  P.  &  P.  (1st  Ed.) 
253,  and  reiterated  by  this  court  in  Whalen  v.  B.  &  O.  R.  R.  Co.,  108 
Md.  11,  69  Atl.  390,  17  L.  R.  A.  (N.  S.)  130,  129  Am.  St.  Rep.  423. 
In  Taylor's  Landlord  and  Tenant  (7th  Ed.)  §  261,  it  is  said  that : 

"In  order  that  a  covenant  may  run  with  the  land,  its  performance 
or  nonperformance  must  afifect  the  nature,  quality,  or  value  of  the  prop- 
erty demised,  independent  of  collateral  circumstances,  or  must  affect 
its  mode  of  enjoyment.  It  must  not  only  concern  the  land,  but  there 
must  be  a  privity  of  estate  between  the  contracting  parties." 

"In  order  that  a  covenant  may  run  with  the  land — that  is,  that  its 
benefit  or  obligation  may  pass  with  the  ownership — it  must  respect  the 
thing  granted  or  demised,  and  the  act  covenanted  to  be  done  or  omit- 
ted must  concern  the  land  or  estate  conveyed.  Whether  a  covenant 
will  or  will  not  run  with  the  land  does  not,  however,  so  much  depend 
on  whether  it  is  to  be  performed  on  the  land  itself,  as  on  w^hether  it 
tends  directly  or  necessarily  to  enhance  its  value  or  render  it  more  bene- 
ficial and  convenient  to  those  by  whom  it  is  owned  or  occupied,  for  if 
this  be  the  case  every  successive  assignee  of  the  land  will  be  entitled 
to  enforce  the  covenant."     11  Cyc.  1080. 

"Such  covenants,  and  such  only,  run  with  land  as  concern  the  land 
itself,  in  whatsoever  hands  it  may  be,  and  become  united  with,  and 
form  a  part  of,  the  consideration  for  which  the  land,  or  some  interest 
in  it,  is  parted  with,  between  the  covenantor  and  covenantee."  Wash- 
burn on  Real  Property,  §  1205. 

That  the  covenant  in  this  case  is  within  these  requirements,  as  affect- 
ing the  interest  in  the  land  demised,  as  enhancing  the  value  thereof, 
and  as  forming  a  part  of  the  consideration  for  the  acceptance  of  the 
lease  by  the  lessees,  would  seem  to  be  free  of  doubt.  The  learned 
counsel  for  the  appellants  contend,  however,  that  the  performance  of 
the  covenant  would  defeat  the  estate  of  the  lessor,  and  change  the  char- 
acter of  the  estate  of  the  lessee,  and  that  it  therefore  falls  within  the 
restrictions  of  Glenn  v.  Canby,  supra.  But  in  Taylor's  Landlord  and 
Tenant,  §  262,  it  is  said : 

"The  right  of  renewal  constitutes  a  part  of  the  tenant's  interest  in 
the  land,  and  a  covenant  to  renew  is  consequently  binding  upon  the  as- 
signee of  the  reversion.  So  the  grant  of  an  additional  term,  or  the 
right  to  purchase,  is,  for  many  purposes,  to  be  considered  a  continua- 
tion of  the  former  lease ;  and,  if  there  is  nothing  in  the  lease  to  show 
that  such  right  or  renewal  was  intended  to  be  confined  personally  to 
the  lessee,  they  will  inure  to  his  assignees  or  executors,  without  their 
being  particularly  named." 

In  the  case  of  MaughHn  v.  Perry,  35  Md.  352,  the  covenant  on  the 
part  of  the  lessor  was  as  follows : 


378  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

"And  the  said  party  of  the  first  part,  for  himself,  his  heirs  and  as- 
signs, doth  hereby  covenant  and  agree  with  the  party  of  the  second 
part,  his  heirs  and  assigns,  to  sell  and  convey  unto  the  party  of  the 
second  part,  his  heirs  and  assigns,  the  above-described  property  and 
premises  for  the  sum  of  fifteen  hundred  dollars  at  any  time  before  the 
expiration  of  this  lease  or  tenancy." 

The  lessor  died  after  having  sold  the  property,  and  suit  was  brought 
by  the  assignees  of  the  lessee  against  the  assignee  of  the  lessor  for  a 
specific  performance  of  the  covenant,  and  the  court,  in  affirming  a  de- 
cree requiring  the  defendant  to  convey  the  property  to  the  plaintiff  in 
accordance  with  the  terms  of  the  covenant,  said : 

"As  a  part  of  the  consideration  of  the  lease  constituting  the  contract 
between  the  parties.  Wells,  the  lessor,  covenanted  to  sell  the  property 
to  Hynson,  his  lessee,  for  fifteen  hundred  dollars,  at  any  time  during 
the  existence  of  the  lease.  This  was  a  continual  obligation  running 
with  the  lease  on  the  part  of  the  lessor,  with  the  option  in  the  tenant 
to  accept  the  same,  or  not,  within  that  time.  But  it  seems  Wells,  be- 
fore the  right  of  Hynson  to  make  his  election  had  determined,  made 
sale  of  the  property  to  Maughlin,  and  died.  Maughlin,  with  notice  of 
the  recorded  contract  between  the  parties,  can  acquire  no  greater  right 
than  possessed  by  Wells." 

The  certain  and  definite  rule  deducible  from  the  authorities  cited, 
then,  is  that  if  the  covenant,  as  in  this  case,  touches  and  concerns  the 
land  or  estate  demised,  enhances  the  value  thereof,  and  forms  a  part 
of  the  consideration  for  the  acceptance  of  the  lease  by  the  lessee,  a 
court  of  equity  will  decree  specific  performance,  not  only  as  between 
the  parties  to  the  contract,  but,  in  the  absence  of  intervening  equities 
controlling  its  conscience,  also  as  between  those  claiming  under  them  in 
privity  of  estate.  24  Cyc.  1026;  Gear  on  Landlord  and  Tenant,  §  84; 
Laffan  v.  Naglee,  9  Cal.  662,  70  Am.  Dec.  678;  Robinson  v.  Perry,  21 
Ga.  183,  68  Am.  Dec.  455 ;  Kerr  v.  Day.  14  Pa.  112,  53  Am.  Dec.  526; 
Hagar  v.  Buck,  44  Vt.  285,  8  Am.  Rep.  368 ;  Spencer's  Case,  1  Smith's 
Leading  Cases,  75.. 

[Decree  for  specific  performance  affirmed.]^® 

2 8 Ace:  Giving  specific  performance.  Blakeman  v.  Miller,  136  Cal.  13S,  tJS 
Pac.  5S7,  89  Am.  St.  Rep.  120  (1902) ;  Harper  v.  Runner,  85  Neb.  343,  123  ^. 
W.  313  (1909) ;  Hagar  v.  Buck,  44  Vt.  285,  8  Am.  Rep.  368  (1872).  In  the 
last  case  the  court  said  (44  Vt.  290,  8  Am.  Rep.  368) : 

"This  consideration  is  sufficient  to  dispose  of  the  question  made  by  the 
defendants  as  to  the  right  of  the  orator  to  stand  upon  this  covenant  in  this 
suit.  But  if  not,  covenants  that  do  not  run  with  the  land  may  be  assigned 
in  equity  so  as  to  pass  the  right  to  enforce  them  by  action  in  the  name  of  the 
covenantee  to  tlie  assignee.  1  Smith's  L.  C,  179,  Field,  J.;  Willard  v.  Tay- 
loe,  8  Wall.  571  [19  L.  Ed.  501  (1869)].  An  assignee  of  a  chose  in  action, 
who  has  the  right  to  proceed  at  law  upon  it  in  the  name  of  the  assignor,  has 
the  right  to  proceed  iipon  it  in  equity  in  his  own  name,  in  cases  proper  to  be 
proceeded  with  in  courts  of  equity.  If  this  covenant  had  not  passed  with 
the  estate  in  the  land  from  Meringo  to  Mary  Ann  Turner,  his  conveyance 
would  liave  operated  as  an  equitable  assignment  of  his  interest  in  it  and  of 
his  right  to  enforce  it  in  his  name  to  her;  and  a  suit  in  equity  in  his  name 


Ch.  4)  LEGAL   ENFORCEMENT   OF  COVENANTS  379 

THOMAS  V.  HAYWARD. 

(Court  of  Exchequer,  1S69.     L.  R.  4  Exch.   311.) 

Declaration  by  the  assignee  of  a  lease  against  the  lessor,  on  a  cove- 
nant in  the  lease,  by  which,  the  lessee  having  covenanted  for  himself 
his  executors,  administrators,  and  assigns,  during  the  continuance  of 
the  term  to  use  and  continue  the  demised  house  for  the  sale  of  spirits, 
the  defendant,  for  himself,  his  executors,  administrators,  and  assigns, 
covenanted  "not  to  build,  erect,  or  keep,  or  be  interested  or  concerned 
in  building,  erecting,  or  keeping,  any  house  for  the  sale  of  spirits  or 
beer  within  the  distance  of  half  a  mile  from  the  premises  thereby  de- 
mised, during  the  continuance  of  the  said  term." 

Demurrer  and  joinder. 

BramwELL,  B.^^  The  covenant  does  not  touch  or  concern  the 
thing  demised.  It  touches  the  beneficial  occupation  of  the  thing,  but 
not  .the  thing  itself;  and  this  becomes  manifest  when  it  is  considered 
that,  supposing  the  lessee's  covenant  to  carry  on  the  sale  of  spirits  on 
the  premises  to  be  discharged  by  agreement  between  the  lessor  and  les- 
see, or  that  without  such  discharge,  the  lessee,  in  fact,  discontinued  the 
business,  the  defendant's  covenant  would  obviously  in  no  way  concern 
the  land.  This  shows  that  the  covenant  relates  only  to  the  mode  of 
occupying  the  land,  not  to  the  land  itself.  It  does  not,  therefore,  run 
with  the  land  so  as  to  enable  the  plaintiff  to  sue  upon  it.     *     *     * 

Judgment  for  the  defendant.^" 

for  such  relief  as  is  sought  in  this  case  would  have  been  proper.  The  orator, 
being  the  personal  representative  of  Mary  Ann  Turner,  could  maintain  this 
suit  in  equity  in  his  own  name,  as  well  as  the  original  covenantee  could 
have  maintained  it  if  no  assignment  or  conveyance  had  been  made." 

A  covenant  to  renew  the  lease  runs:  In  favor  of  the  assignee  of  the  les- 
see, Cook  V.  Jones,  96  Ky.  2S3,  28  S.  W.  9C0  (1894) ;  McClintock  v.  Joyner. 
77  Miss.  678,  27  South.  837,  78  Am.  St.  Rep.  541  (1900) ;  against  the  assignee 
of  the  lessor,  Isteed  v.  Stonely,  1  And.  82  (1580) ;  Leominster  Gaslight  Co. 
V.  Hillery,  197  Mass.  267,  83  N.  E.  870  (1908).  Compare  Muller  v.  Trallord 
[1901]  1  Ch.  54. 

A.,  a  wine  merchant,  who  owned  a  hotel,  leased  the  hotel  to  X.,  who  cove- 
nanted to  sell  no  wines  there  save  those  purchased  from  A.,  his  successors 
or  assigns.  The  lease  contained  a  proviso  that  so  long  as  X.  observed  this 
covenant  the  rent  should  be  abated  a  specihed  sum.  A.  died,  devising  all 
his  real  and  personal  estate  to  B.  The  wine  business  was  sold  by  B.  to  C. 
The  lease  ~was  assigned  by  X.  to  Y.  Upon  a  submitted  case,  to  have  deter- 
mined the  proper  construction  of  the  lease,  held,  so  long  as  Y.  sells  no  wines 
on  the  premises  save  those  purchased  from  C,  he  is  entitled  to  the  abate- 
ment in  the  rent.     White  v.  Southern  Hotel  Co.,  [1897]  1  Ch.  767. 

2  8  The  opinions  of  Channell  and  Cleasby,  BB.,  are  omitted. 

3  0  In  Norman  v.  Wells,  17  Wend.  (N.  Y.)  136  (1S37),  on  substantially  the 
.same  state  of  facts,  the  court  held  for  the  plaintiff,  saying  (page  151):  "in 
the  case  at  bar  the  covenant  is  still  more  material.  It  is  not  to  avoid  doing 
what  would  be  a  mere  matter  of  inconvenience  or  offence  to  good  taste ;  l)ut 
what  might  very  materially  impair  the  factory  lot  demised  to  Delacroix,  for 
business  purposes.  The  rent  was  doubtless  large  in  proportion ;  and  the 
benefit  would  attend  the  lessee  and  all  his  assignees,  whether  immediate  or 
remote,  during  the  term.     The  covenant  respected  the  premises ;  it  fegulat- 


380  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

DEWAR  V.  GOODMAN. 

(Court  of  Appeal,  1907.     [1908]  1  K.  B.  94.) 

[Action  by  the  assignee  of  a  lease  against  the  assignee  of  the  rever- 
sion for  breach  of  the  covenants  contained  in  the  lease.  Judgment  be- 
low was  for  the  defendant  and  the  plaintiff  appeals.] 

Lord  AlvErstone,  C.  J.^^  In  this  case  we  are  asked  to  reverse 
the  judgment  of  Jelf,  J.,  who  has  held  that  the  action  cannot  be  main- 
tained. Speaking  for  myself,  I  wish  to  say  that  I  am  greatly  indebted 
to  Mr.  Copping  for  his  very  able  argument,  and  I  think  that  much  that 
has  been  said  by  him  would  be  strong  ground  for  holding  that  a  lessee 
in  the  circumstances  of  this  case  ought  to  be  allowed  by  the  law  to  have 
a  remedy  against  the  assignee  of  the  lessor,  but  there  is  a  strong  line  of 
authorities  which,  in  my  opinion,  prevents  us  from  giving  effect  to 
that  argument.  The  question  which  we  have  to  decide  arises  in  this 
way.  In  1820  a  lease  of  certain  land  was  granted,  which  contained  a 
covenant  on  the  part  of  the  lessee  to  keep  in  repair  all  buildings  erect- 
ed on  the  land.  Houses  to  the  number  of  211  were  erected  on  the 
land.  In  1886,  Barns,  in  whom  the  lease  of  1820  had  become  vested, 
sub-demised  two  of  the  houses  to  Humphrey,  the  underlease  containing 
a  covenant  by  Humphrey,  to  keep  the  two  houses  in  good  repair  and 
covenants  by  Barns  and  his  assigns  for  quiet  enjo5'ment  and  for  the 
performance  of  the  covenants  in  the  head  lease,  and  for  an  indemnity 
against  their  non-performance.  The  underlease  also  contained  a  pro- 
viso which  is  not  without  significance  as  shewing  that  the  parties  had 
some  doubt  as  to  the  effect  of  the  covenants  in  the  underlease,  because 
it  provided  that  the  lessor,  that  is,  Barns,  should  only  be  bound  by  the 
covenants  whilst  he  held  the  reversion,  and  that  it  was  the  intention  of 
the  parties  that  the  covenant  should  bind  "so  far  as  can  be"  any  other 
persons  for  the  time  being  entitled  to  the  reversion.  The  plaintiff  is 
the  assignee  of  Humphrey,  and  the  defendant  is  the  assignee  of  Barns. 
The  plaintiff  was  ejected  by  the  head  landlord  for  a  breach  of  the  cov- 
enant in  the  head  lease  to  repair  all  the  houses  including  the  two  demis- 
ed by  the  underlease.  In  respect  of  that  ejectment  the  plaintiff  sues 
the  defendant  on  the  covenants  contained  in  the  underlease. 

For  the  purpose  of  my  judgment  I  will  assume  that,  if  the  complaint 

ed  their  value,  it  fixed  the  amount  of  rent,  it  was  co-extensive  with  tlie 
estate,  it  benefited  the  owner  of  the  demised  premises,  and  nobody  but  the 
owner.  So  far  it  would,  I  thinli,  be  a  plain  departure  from  the  principle  and 
analogy  to  deny  the  assignees'  action  on  this  covenant." 

A.,  being  the  owner  in  fee  of  a  town,  leased  a  store  to  X.  and  covenanted 
that  he  should  have  the  exclusive  privilege  of  selling  merchandise  in  the 
town  for  ten  years.  A.  leased  another  lot  to  B.,  who  subleased  to  C,  who 
sold  merchandise  within  the  ten  years.  C.  had  notice  of  A.'s  covenant  with 
X.  before  he  took  his  sublease.  Held,  X.  has  no  rights,  legal  or  equitable, 
against  C.  Taylor  v.  Owen,  2  Blackf.  (Ind.)  301,  20  Am.  Dee.  115  (1830). 
See  Hebert  v.  Dupaty,  42  La.  Ann.  343,  7  South.  580  (1890). 

«i  The  opinions  of  Buckley  and  Kennedy,  L.  J  J.,  are  omitted. 


Ch. 4)  LEGAL  ENFORCEMENT  OF  COVENANTS  381 

as  to  non-repair  had  related  only  to  the  two  houses  occupied  by  the 
plaintiff,  there  would  have  been  no  ejectment  of  the  plaintiff.  I  do  not 
base  my  judgment  in  any  way  on  any  question  as  to  whether  the  plain- 
tiff, having  himself  been  under  covenant  to  keep  those  two  houses  in 
repair,  is  thereby  precluded  from  maintaining  this,  action.  The  real 
question  which  we  have  to  consider  is  whether  the  lessor's  covenants  in 
.the  underlease  are  covenants  which  run  with  the  land.  It  has  been 
pointed  out  by  Jelf,  J.,  in  his  most  carefully  considered  judgment  that 
the  law  on  this  subject  is  fenced  round  with  technicalities,  but  he  sug- 
gested that  it  might  be  possible  for  this  Court  to  take  a,  broader  view 
of  the  matter  than  he  felt  bound  to  take,  and  to  break  through  those 
technicalities.  In  my  opinion  it  is  not  possible  for  us  to  deal  with 
this  case  in  the  way  contended  for  in  the  argument  for  the  plaintiff' 
without  introducing  entirely  new  principles,  and  overruling  one  if 
not  two  cases.  It  was  said  in  aj-gument  that  it  was  assumed  in  Dough- 
ty V.  Bowman,  11  Q.  B.  444,  that  a  covenant  of  the  kind  in  question  in 
this  case  would  bind  the  assignee  of  the  reversion,  if  assigns  were  named 
in  the  covenant.  I  was  at  first  somewhat  impressed  with  that,  but  I  had 
not  quite  appreciated  the  facts  of  that  case.  There  was  in  Doughty  v. 
Bowman,  11  Q.  B.  444,  a  covenant  by  the  lessee  to  erect  certain  houses 
on  the  demised  land ;  the  lessee  sub-demised  to  the  plaintiff,  and  cove- 
nanted with  him  to  perform  all  the  lessee's  covenants  in  the  lease,  but 
not  naming  assigns.  The  lessee  afterwards  assigned  to  the  defendant, 
and  the  question  was  whether  the  lessee's  covenant  to  perform  the  cov- 
enant as  to  building  the  houses  was  binding  on  the  defendant.  I  agree 
that  the  judges  assumed  that  if  assigns  had  been  named  in  the  covenant 
it  would  have  been  binding  on  them,  but  it  is  clear,  I  think,  that  the 
decision  really  turned  on  the  distinction  between  the  thing  to  be  done 
on  the  land  being  in  esse  or  in  posse  at  the  time  of  the  demise,  for  Pat- 
teson,  J.,  in  his  judgment  said  (11  Q.  B.  at  page  448) :  "There  are  two 
sorts  of  covenants,  the  one  binding  the  assignee  of  land  whether  nam- 
ed or  not,  the  other  not  binding  him  unless  he  is  named.  If  the  cove- 
nant in  question  be  considered  as  a  covenant  to  build  houses,  then  it 
relates  to  a  thing  not  in  esse  at  the  time  of  demise,  and  does  not  bind 
the  assignee  of  the  land,  as  he  is  not  named" ;  and  Parke,  B.,  said 
(Ibid,  at  page  454) :  "The  first  resolution  in  Spencer's  Case,  5  Rep.  16, 
1  Smith,  L.  C,  applies  here,  and  so  does  the  first  of  the  two  answers 
given  by  my  brother  Patteson  in  the  present  case.  Assigns  are  not 
named,  and  the  covenant,  concerning  a  thing  not  in  esse  at  the  time 
of  the  demise,  does  not  pass  to  assigns  unnamed." 

It  is  quite  clear  from  those  passages  that  the  Court  there  was  not 
considering  the  question  of  a  covenant  to  do  something  on  land  oth- 
er than  that  demised.  This  view  is  borne  out  by  the  comments  on 
Doughty  V.  Bowman,  11  Q.  B.  444,  made  in  Minshull  v.  Oakes,  2  H.  & 
N.  793,  and  both  cases  are  referred  to  in  Smith's  Leading  Cases,  vol. 
1,  11th  Ed.,  pp.  70,  71,  as  authorities  for  the  proposition  that  covenants 
as  to  things  not  in  existence  at  the  time  of  the  demise  are  not  binding 


■382  RI3HTS   IN  THE   LAND   OF   ANOTHER  "  (Part  2 

on  assigns  if  they  are  not  named.  The  covenant  in  the  present  case  is 
a  covenant  to  do  something  on  land  which  was  not  the  subject  of  the 
demise,  but  it  is  contended  for  the  plaintiff,  that,  as  the  performance 
of  the  covenant  was  for  the  benefit  and  protection  of  the  sub-lessee 
and  concerned  his  interest  or  estate  in  the  land,  that  is  sufficient  to  bind 
the  assigns,  and  cases  were  cited  for  the  purposes  of  shewing  that^ 
the  terms  "estate"  and  "land"  were  in  this  connection  to  be  treated  as 
equivalent.  But  the  important  thing  to  observe  with  regard  to  the 
cases  cited  was  that  in  every  one  of  them  the  covenant  did  touch  and 
concern  the  land  demised  in  the  strictest  sense  of  the  word,  and  more- 
over it  must  be  remembered  that  observations  as  to  covenants  for  quiet 
enjoyment  must  always  be  read  as  applying  to  the  particular  facts  of 
each  case. 

The  case  of  Sampson  v.  Easterby,  9  B.  &  C.  505,  6  Bing.  644,  was 
cited  in  reply  as  an  instance  of  a  covenant  to  do  something  on  land 
other  than  the  land  demised  which  was  held  to  run  with  the  land.  That 
was  a  case  where  there  was  a  lease  of  minerals  in  or  under  certain 
moors  or  waste  lands,  and  there  was  a  covenant  by  the  lessees  to  erect 
a  new  smelting  mill  on  part  of  the  waste.  It  was  held  that  the  cove- 
nant passed  with  the  reversion,  but  the  decision  proceeded  upon  the 
ground  that  the  erection  of  the  new  mill  was  a  matter  so  closely  con- 
nected with  the  working  of  the  mines  that  it  tended  to  the  support  and 
maintenance  of  the  thing  demised.  The  facts  in  that  case  were  of  such 
a  very  special  character  that  the  case  cannot  in  my  opinion  be  regarded 
as  an  authority  in  favour  of  the  plaintiff's  contention  in  the  present 
case.     *     *     * 

In  my  opinion,  having  regard  to  the  original  foundation  of  the  rule 
in  Spencer's  Case,  5  Rep.  16,  1  Smith  L.  C.  11th  Ed.  p.  55,  and  to  the 
way  in  which  that  rule  has  been  applied  in  numerous  cases,  it  is  im- 
possible to  say  that  Jelf,  J.,  came  to  a  wrong  conclusion  in  holding  that 
this  action  failed.     For  these  reasons  the  appeal  must  be  dismissed.^- 

32  On  appeal  to  the  House  of  Lords  the  decision  of  the  Court  of  Appeal 
was  affirmed.  [1909]  App.  Cas.  72,  Lord  Collins  said  (page  77):  "The 
reason  why  the  covenant  to  do  something  on  land  other  than  that  demised 
presumably  does  not  run  is  not  because  there  is  not  privity  of  estate  in  the 
land  on  which  the  covenant  is  to  be  performed,  but  because  such  a  covenant 
is  prima  facie  collateral,  i.  e.,  does  not  touch  or  concern  the  land  demised. 
But  instances  may  be  imagined  of  covenants  to  do  things  on  land  other  than 
that  demised  which  touch  and  concern  so  nearly  the  land  demised  as  to 
run  with  it.  Of  this  Sampson  v.  Easterby,  9  B.  &  C.  505  [1829],  6  Bing. 
G44  [1830],  is  an  instance,  if  it  be  assumed,  as  it  seems  to  have  been,  that 
no  demise  was  to  be  implied  of  the  site  on  the  waste  where  the  mill  was 
to  be  built.  Vyvyan  v.  Arthur,  1  B.  &  C.  415  [1823],  is  another  instance 
where  there  was  no  privity  of  estate  in  the  land  on  which  the  covenant  was 
to  be  performed,  but  on  special  grounds  the  covenant  was  held  to  run." 

A.  owned  two  adjoining  lots.  He  leased  one  to  X.  and  covenanted  that 
he  would  not  build  on  the  adjacent  piece  within  30  feet  of  the  street.  X. 
assigned  the  lease  to  Y.  A.  built  on  the  adjacent  lot  within  30  feet  of  the 
street.  Held,  the  covenant  runs  with  the  land  and  Y.  has  an  action  against 
A.  for  damages  for  breach  thereof.  Ricketts  v.  Entield  Church  VVaraeus, 
[1909]  1  Ch.  544. 


Ch.  4)  LEGAL  ENFOKCEMENT  OF  COVENANTS  383 

(D)  Assignments 
(a)  G«NERAL  Principles  , 

BRETT  V.  CUMBERLAND. 
(Court  of  King's  Bench,  1619.     2  Rolle,  63.) 

The  king  leased  three  mills  for  years  by  his  letters  patent  in  which 
was  this  clause: 

"And  the  aforesaid  W.  C,  the  lessee,  his  executor  and  assigns  from 
time  to  time  during  the  aforesaid  term,  as  often  as  shall  be  necessary, 
will  well  and  truly  keep  up  and  repair  the  aforesaid  mill  and  other 
premises."  The  lessee  grants  over  his  estate;  the  king  accepts  rent 
from  the  grantee ;  the  first  lessee  dies ;  the  king  assigns  his  reversion ; 
the  assignee  of  the  reversion  accepts  rent  from  the  grantee ;  the  mills 
become  ruinous;  the  assignee  brings  action  of  covenant  against  the 
executors  of  the  first  lessee.    *     *     * 

The  court  took  the  matter  under  advisement  and  it  was  finally  re- 
solved: 1.  That  this  was  an  express  covenant.  *  *  *  2.  That  the 
king  himself  could  clearly  charge  the  lessee  himself  after  the  assign- 
ment of  the  term,  for  by  no  assignment  that  the  lessee  could  make 
could  he  discharge  himself  from  the  express  covenant.  3.  That  the 
king  could  have  charged  the  executors  of  the  lessee  after  the  assign- 
ment of  the  term,  for  they  represent  the  person  of  the  testator.  4. 
That  the  king  could  have  charged  each  assignee  of  the  term  who  had 
the  estate,  but  if  the  king  leased  to  A  with  such  a  covenant  and  A  as- 
signed to  B,  and  B  to  C,  now  the  king  could  not  charge  B  for  the  re- 
pairs which  have  to  be  made ;  for  although  B  was  the  assignee  of  the 
estate,  still  he  was  not  so  at  the  time  the  repairs  were  made  and  his 
(the  lessee's)  executors  can  be  made  chargeable  (as  aforesaid).  5. 
The  king  could  not  recover  for  repairs  suffered  after  his  own  assign- 
ment. 6.  The  assignee  of  the  king  in  all  the  cases  aforesaid  shall  have 
like  remedy  by  action  of  covenant  as  the  king  himself  could  have,  by 
the  express  words  of  the  Statute  of  32  H.  8,  ch.  34.    *    *    * 

Wherefore  judgment  was  given  for  the  plaintiff. ^^ 

33  Ace. :   Norton  v.  Acklane,  Cro.  Car.  579  (1640). 


384  EIGHTS  IN  THE   LAND   OF  ANOTHER  (Fart  2 


WALL  V.  HINDS. 

•     (Supreme  Judicial  Court  of  Massachusetts,  1S55.     4  Gray,  256,  64  Am. 

Dec.  64.) 

[Wall  executed  to  Hinds  a  lease  under  seal  of  certain  premises 
for  a  term  of  years,  Hinds  covenanting,  among  other  things,  to  pay 
the  rent.  Six  months  later  Hinds  assigned  the  lease  and  Wall  ac- 
cepted rent  from  the  assignee.  Subsequently  the  assignee  failed  to 
pay  the  rent,  and  Wall  brought  this  action  against  Hinds  upon  the 
covenant  in  the  lease.] 

BiGELOW,  J.^*  L  The  assignment  by  the  lessee  of  his  entire  in- 
terest in  the  estate  under  the  lease,  and  the  acceptance  of  rent  by  the 
plaintiffs  from  the  assignees,  do  not  constitute  a  valid  defence  to 
the  present  suit.  It  is  the  well  settled  rule  of  law  that  in  such  case  the 
lessor  cannot  maintain  an  action  of  debt  for  rent  against  the  lessee; 
■  but  that  an  action  will  lie  against  him  on  the  covenant  for  the  payment 
of  rent.  The  reason  of  the  rule  is,  that,  although  by  the  assignment 
the  privity  of  estate  between  lessor  and  lessee  is  terminated,  there 
still  remains  the  privity  of  contract  between  them,  created  by  the 
lease,  which  is  not  affected  by  the  assignment.  The  lessee  still  con- 
tinues liable  on  his  covenant,  by  virtue  of  the  privity  of  contract. 
Bachelour  v.  Gage,  Cro.  Car.  188;  Barnard  v.  Godscall,  Cro.  Jac.  309; 
Thursby  v.  Plant.  1  Saund.  240 :  Auriol  v.  Mills,  4  T.  R.  94.     *     *     * 

Judgment  for  the  plaintiffs.^ ^ 


WASHINGTON  NATURAL  GAS  CO.  v.  JOHNSON  et  al. 

(Supreme  Court  of  Pennsylvania,  1889.     123  Pa.  576,  16  Atl.  799,  10  Am.  St. 

Rep.  553.) 

Williams,  J.,^'  This  action  is  brought  to  recover  for  a  breach  of 
covenant  contained  in  an  oil  lease  dated  August  5,  1885.  By  the 
terms  of  the  lease,  Guffy  &  Co.,  the  lessees,  acquired  the  exclusive 
right  to  drill  and  operate  wells  for  oil  and  gas  on  about  75  acres  of 
land  for  the  term  of  20  years.  In  consideration  of  the  grant,  they 
undertook  to  commence  operations  on  the  premises,  and  complete  one 
well  within  six  months  from  the  date  of  the  lease.  They  were  also 
to  commence  a  second  well  four  months  after  the  time  for  the  com- 
pletion of  well  No.  L  The  royalty  to  be  paid  was  fixed  by  the  terms 
of  the  lease  at  one-fourth  of  all  oil  produced,  if  oil  was  found,  and 
$800  per  annum  for  each  gas  well  operated,  if  gas  was  found  in  suffi- 
cient quantities  to  be  utilized.  The  lessees  took  possession,  and  drill- 
s' Part  of  the  opinion  is  omitted. 

ssAcc:     Consumers'   Ice   Co.  v.   Bixler,  84  Md.  437,   35  Atl.   10S6    (1896). 
Compare  Kimpton  v.  Wallcer,  9  Vt.  191  (1837). 

3  6  Tlie  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  385 

ed  one  well  in  accordance  with  their  covenant,  which  produced  gas 
in  sufficient  quantities  to  be  utilized.  Three  months  before  the  time 
for  putting  down  the  second  well,  Gufify  &  Co.  assigned  the  lease  to 
Robbins,  who  held  it  from  the  18th  March,  1886,  till  the  20th  January, 
1887,  and  then  assigned  to  Washington  Natural  Gas  Company.  The 
second  well  should  have  been  drilled,  allowing  three  months  to  be  a 
reasonable  time  in  which  to  complete  it,  during  the  time  when  Rob- 
bins  was  the  holder  of  the  lease.  The  action,  however,  is  against  the 
assignee  of  Robbins,  whose  title  was  acquired  some  two  months  after 
the  time  when  the  well  should  have  been  completed,  and  at  least  five 
months  after  it  should  have  been  begun.  The  liability  of  the  assignee 
was  brought  to  the  attention  of  the  court  by  the  sixth  point  submitted 
on  the  part  of  the  defendant  below,  as  follows :  "It  being  a  conceded 
fact  that  a  reasonable  time  for  drilling  said  second  well  had  elapsed 
before  defendant  became  assignee  of  the  lease,  the  defendant  can- 
not be  held  liable  for  a  failure  to  drill  said  well."  This  point  was 
refused. 

The  seventh  point  asked  the  further  instruction  that,  "it  being 
shown  by  the  plaintiffs  themselves  that  the  covenant  in  the  lease 
*  *  *  to  commence  the  second  well  *  *  *  was  brxDken  before 
the  defendant  acquired  any  interest  in  the  lease,  the  proper  remedy 
for  such  breach  was  an  action  against  the  original  lessee,  or  the  holder 
of  the  lease  at  the  time  of  the  breach."  This  was  also  refused;  and 
the  learned  judge  told  the  jury  in  his  general  charge  that  the  breach 
of  covenant  to  drill  a  second  well  was  not  complete  until  the  end  of 
the  60  days  after  the  well  should  have  been  finished,  because  that 
was  the  time  when  the  rent  for  the  second  well  would  fall  due.  "The 
commencement  of  the  breach,"  said  the  learned  judge  to  the  jury, 
"was  the  failure  to  begin  a  second  well  on  or  before  October,  1886, 
and  the  consummation  was  in  not  paying  the  eight  hundred  dollars 
when  it  ought  to  have  been  paid,  had  a  paying  well  been  struck."  The 
answers  to  the  points  and  the  foregoing  instruction  are  assigned 
for  error. 

The  covenant  sued  on  is  as  follows :  "And  it  is  further  agreed  that 
the  second  well  shall  be  commenced  four  months  after  May,  1886, 
the  time  stated  for  the  completion  of  well  No.  1."  The  plaintiffs  al- 
lege a  breach  of  this  covenant,  and  state  their  cause  of  action  to  be 
that  the  defendant  has  failed  to  commence  a  second  well  upon  said 
leased  premises  within  the  time  mentioned  in  said  lease;  to-wit, 
within  four  months  from  May  1,  1886,  or  at  any  other  time.  The  in- 
struction of  the  learned  judge  that  a  covenant  to  commence  a  well  at  a 
fixed  time  was  only  partly  broken  by  a  failure  to  commence  it  is  not  in 
harmony  with  the  plaintiff's  claim,  as  stated  in  their  narr.,  nor  is  it 
justified  by  the  terms  of  the  covenant.  If  the  well  had  been  drilled 
at  the  proper  time,  the  covenant  would  have  been  fully  performed, 
1  hough  neither  gas  nor  oil  had  been  found,  and  in  that  event  no  rent 
BiG.RiGH^s — 25 


386  RIGHTS  IN  THE   LAND   OF  ANOTHER  (Part  2 

would  have  been  demandable.  The  duty  to  pay  rent  for  the  second 
well  as  for  the  first  one  was  conditional  upon  actual  production,  and 
it  ceased  when  the  production  ceased,  or  when  the  quantity  of  gas 
was  to  small  to  be  utilized.  The  object  of  the  covenant  was  to 
secure  the  development  of  the  lessors'  land  by  the  putting  down  of 
two  wells  upon  it  for  which  rent  was  to  be  paid  if  the  wells  were 
successful.  The  breach  was  complete  when  the  lessees  failed  to  drill 
as  they  had  agreed.  .Loss  of  rents  and  profits  might  or  might  not 
follow,  depending  on  the  productiveness  of  the  field.  This  subject 
might  have  been  considered  by  the  jury  in  fixing  the  damages  after 
the  plaintiffs'  right  to  recover  was  settled,  but  had  no  relation  what- 
ever to  the  question  on  which  the  liability  of  the  defendant  depended. 

Turning,  then,  to  the  question  raised  by  the  points,  we  find  the  facts 
to  be  as  assumed  therein,  and  the  liability  of  the  gas  company  to  de- 
pend upon  the  extent  to  which  the  covenants  of  Guffy  &  Co.  run  with 
the  land.  That  they  continued  liable  notwithstanding  their  assign- 
ment to  Robbins  is  very  clear.  The  covenant  was  their  own,  and 
their  privity  of  contract  with  their  lessors  continued  notwithstanding 
their  assignment  of  the  lease.  Their  assignee,  Robbins,  who  was  in 
possession  when  the  time  for  performance  arrived,  was  also  liable  be- 
cause of  the  privity  of  estate  which  arose  upon  his  acceptance  of 
the  assignment.  Acquiring  the  leasehold  estate  by  an  assignment 
of  the  lease,  he  is  fixed  with  notice  of  its  covenants,  and  he  takes  the 
estate  of  his  assignors  cum  onere.  But  as  his  liability  grows  out  of 
privity  of  estate,  it  ceases  when  the  privity  ceases.  If  he  had  as- 
signed before  the  time  for  performance,  his  liability  would  have"  ceased 
with  his  title,  and  liability  would  have  attached  to  his  assignee  by 
reason  of  privity  of  estate,  and  so  on,  toties  quoties.  Each  succes- 
sive assignee  would  be  liable  for  covenants  maturing  while  the  title 
was  held  by  him  because  of  privity  of  estate,  but  he  would  not  be  lia- 
ble for  those  previously  broken,  or  subsequently  maturing,  because  of 
the  absence  of  any  contract  relation  with  the  lessor.  While  he  holds 
the  estate,  and  enjoys  its  benefits,  he  bears  its  burdens,  but  he  lays 
down  both  the  estate  and  its  burdens  by  an  assignment,  even  though, 
as  is  said  in  some  of  the  cases,  his  assignment  be  to  a  beggar.  Negley 
V.  Morgan,  46  Pa.  281 ;  Borland's  Appeal,  66  Pa.  470. 

It  is  clear,  therefore,  that,  when  Robbins  made  his  assignment  to 
the  Washington  Natural  Gas  Company,  the  time  fixed  in  the  lease 
for  the  sinking  of  the  second  well  had  gone  by,  and  the  covenant  was 
broken.  Guffy  &  Co.  were  liable  upon  their  contract  because,  al- 
though their  assignment  had  divested  them  of  the  lease,  it  could  not 
relieve  them  from  their  contract.  Robbins,  who  was  the  owner  when 
the  covenant  matured,  was  liable  because  of  the  privity  of  estate, 
but  the  gas  company  had  no  relations  with  the  lessor  or  the  leasehold 
until  after  the  covenant  was  broken.  The  covenant  ran  with  the  land 
until  the  breach.  It  then  ceased  to  run,  because  it  was  turned  into  a 
cause  of  action.    The  case  of  Oil  Co.  v.  Blair,  113  Pa.  83,  4  Atl.  218, 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  387 

57  Am.  Rep.  442,  has  been  cited  as  sustaining  a  contrary  doctrine,  but 
an  examination' of  it  will  show  that  it  is  clearly  distinguishable  from 
this  case.  The  covenant  which  it  is  sought  to  enforce  in  that  case  was 
not  for  the  completion  of  successive  wells  at  successive  dates,  but  it 
was  for  the  commencement  of  the  work  of  developing  Blair's  farm 
at  a  time  certain,  and  to  continue  with  due  diligence  and  without  delay 
to  prosecute  the  business  to  success  or  abandonment,  and,  if  success- 
ful, to  prosecute  the  same  without  interruption.  Two  wells  were 
completed,  and  were  successful  oil  wells.  The  assignee  of  the  lease 
owned  adjoining  lands  upon  which  it  was  operating,  and  it  stopped 
work  on  the  Blair  farm.  The  action  rested  on  the  breach  of  the 
covenant  to  prosecute  the  business  of  producing  oil  from  the  land  of 
the  lessor  with  due  diligence  and  "without  interruption."  The  obliga- 
tion of  a  covenant  to  prosecute  the  business  of  developing  the  land 
of  the  lessor  without  delay  and  without  interruption  is  a  continuing 
one.  The  breach  for  which  the  Bradford  Oil  Company  was  held 
liable    was    not    that    of    some    previous    holder    of    title,    but  its 


own. 


* 


Judgment  reversed. *' 


JONES  V.  PARKER  et  al. 

SAME  V.  GROVER. 

(Supreme  Judicial  Court  of  Massachusetts,  1895.     163  Mass.  5G4,  40  N.  E. 
1044,  47  Am.  St.  Rep.  485.) 

HoLMES,_  J.'*  The  case  of  Jones  v.  Parker  is  a  bill  in  equity 
brought  by  a. lessee  upon  a  lease  purporting  to  begin  on  September  1, 
1893,  and  to  demise  part  of  a  basement  in  a  building  not  yet  erected. 
The  lessor  "covenants  to  deliver  possession  of  the  same  to  the  lessee 
upon  completion  of  said  building,  and  thereafter,  during  the  term  of 
this  lease,  reasonably  to  heat  and  light  the  demised  premises."  It  is  al- 
leged that  the  building  has  been  completed,  but  that  the  defendants  re- 
fused to  complete  the  premises  with  apparatus  sufficient  to  heat  and 
light  the  same,  and  to  deliver  the  same  to  tlie  plaintiff.  It  also  is  alleged 
that  the  occupancy  of  the  premises  for  the  purpose  contemplated  in 
the  lease  was  impossible  without  the  construction  in  the  premises  of 
proper  apparatus  for  heating  and  lighting  them  before  delivery  to 
the  plaintiff.  The  prayer  is  for  specific  performance  of  the  covenant 
quoted,  and  for  damages.    The  defendant  demurs. 

The  last  objection  taken  is  based  on  an  allegation  that  the  lessor, 
Parker,  has  conveyed  the  reversion  to  Blackall.    It  is  not  alleged  that 

87Acc.:  Grescot  v.  Green,  1  Salk.  199  (1700);  Churchwardens  v.  Smith,  3 
Burr.  1271  (17G2).  Ace.  as  to  lessee's  assignee's  liability  for  rent  accruing 
after  an  assignniout  by  the  assignee:  Johnson  v.  Sherman,  15  Cal.  287,  70 
Am.  Dec.  481   (ISGO). 

88  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


388  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part   2 

Blackall  had  notice  of  Parker's  covenant.  But,  as  the  lease  is  for  less 
than  seven  years,  it  is  valid  without  recording  or  notice  (Pub.  St.  c. 
120,  §  4),  and  the  assignment  does  not  entitle  Blackall  to  prevent  the 
performance  of  the  covenant.  We  need  not  consider  whether  the  cove- 
nant runs  with  the  reversion,  by  virtue  of  St.  32  Hen.  VIII,  c.  34,  § 
2, — a  question  not  to  be  confused  with  the  different  one  as  to  the  cove- 
nants attaching  a  burden  or  a  right  to  land  at  common  law,  irrespective 
of  privity  or  the  mention  of  assigns,  after  the  analogy  of  commons  or 
easements,  or  the  yet  different  one  as  to  the  transfer  of  the  benefit  of 
warranties  or  covenants  for  title  to  assigns,  when  mentioned,  being 
privies  in  estate  with  the  original  covenantees.  Norcross  v.  James,  140 
Mass.  188,  2  N.  E.  946;  Middlefield  v.  Knitting  Co.,  160  Mass.  261, 
35  N.  E.  780.  This  covenant  is  pretty  near  the  line,  as  it  has  been 
drawn  between  covenants  that  will  and  those  that  will  not  pass  under 
the  statute,  in  respect  of  their  nature.  Assigns  are  not  mentioned,  and 
the  plaintiff  has  not  entered,  but  perhaps  none  of  these  objections 
would  be  fatal.  Spencer's  Case,  5  Coke,  16,  and  note  to  same  case  in 
1  Smith,  Lead.  Cas.  137;  Moore,  159;  Plow.  300;  Jourdain  v.  Wil- 
son, 4  Barn.  &  Aid.  266,  268;  Doughty  v.  Bowman,  11  Q.  B.  444; 
Minshull  V.  Oakes,  2  Hurl.  &  N.  793,  808 ;  Rawle,  Cov.  (5th  Ed.)  §§ 
313,  318;  Williams  v.  Bosanquet,  1  Brod.  <&;  B.  238;  Simonds  v. 
Turner,  120  Mass.  328.  However  this  may  be,  the  plaintiff  is  enti- 
rted  to  his  lease,  and  to  his  heat  and  light,  notwithstanding  the  as- 
signment; and  whether  the  covenant  passes,  or  not,  he  can  hold  the 
defendant,  Parker,  on  his  express  contract.  All  the  cases  which  have 
come  under  our  eye  are  cases  of  covenants  by  lessees,  but  the  rea- 
soning is  equally  good  for  covenants  by  lessors.  Wall  v.  Hinds,  4 
Gray,  256,  266,  64  Am.  Dec.  64;  Mason  v.  Smith,  131  Mass.  510, 
511;  Barnard  v.  Godscall,  Cro.  Jac.  309;  Brett  v.  Cumberland,  Id. 
521;  Bachelour  v.  Gage,  Cro.  Car.  188;  Pitcher  v.  Tovey,  4  Mod. 
71,  76;  Auriol  v.  Mills,  4  Term  R.  94,  98,  99.  *  *  * 
Demurrer  overruled.^® 

3BACC.:  Stuart  v.  Joy.  [1904]  1  K.  B.  362;  Hazen  v.  Hoyt  (Iowa)  75  IN. 
W.  647  (189S) ;  Neal  v.  Jefferson.  212  Mass.  517,  99  N.  E.  .334,  41  L.  R.  A. 
(N.  S.)  387,  Ann.  Cas.  1913D,  205  (1912) ;  Chamberlain  v.  Dunlop,  126  N.  Y. 
45,  26  N.  E.  966,  22  Am.  St.  Rep.  807  (1891).  Compare  Mansel  v.  Norton, 
L.  R.  22  Ch.  D.  769  (18S3). 

A.  leased  land  to  X.  on  a  long  terra  lease.  In  the  lease  A.  covenanted  for 
himself,  his  heirs,  executors,  administrators,  and  assigns  with  X.,  his  heirs, 
executors,  administrators,  and  assigns,  that  A.  and  his  heirs,  executors,  ad- 
ministrators, and  assigns,  would  within  one  year  from  the  maliing  of  the 
lease  build  and  finish  a  roadway  upon  A.'s  land  along  the  east  boundary  of 
the  demised  premises.  A.  did  not  so  build  within  the  year  or  at  any  other 
time,  nor  did  any  other  person  build  the  road.  A.'s  interests  were  subsequently 
conveyed  to  B.,  and  X.'s  Interest  to  Y.  Held,  admitting  the  covenant  to  be  of 
a  sort  that  might  run  with  the  land,  Y.  had  no  cause  of  action  against  B.  for 
the  non-building  of  the  road.  Morris  v.  Kennedy,  [1896]  2  Ir.  247  (1894).  Ace. 
Coffin  V.  Talman,  8  N.  Y.  465  (1853). 

A.  leased  a  house  to  X.  and  covenanted  for  himself  and  his  assigns  that 
he  "would,  as  the  court  construed  the  covenants:  (1)  Paint  the  house  within 
A  reasonable  time  after  the  making  of  the  lease;    (2)  during  the  lease,  on 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  389 

MASON  V.  SMITH. 
(Supreme   Judicial   Court  of   Massachusetts,   1881.     131   Mass.   510.) 

Contract  for  money  paid.  Trial  in  the  Superior  Court,  without 
a  jury,  before  Dewey,  ].,  who  allowed  a  bill  of  exceptions,  in  sub- 
stance as  follows : 

On  December  20,  1869,  Nancy  J.  Fuller  leased  to  the  plaintiff  a 
parcel  of  land  in  Boston,  for  the  term  of  fifteen  years  from  January 
1,  1870,  by  an  instrument  under  seal  and  duly  recorded,  the  lessee 
covenanting  to  pay  rent  and  taxes.  On  April  8,  1870,  the  plaintiff 
assigned  the  lease  to  the  defendant  by  an  instrument  under  seal,  writ- 
ten on  the  back  of  the  lease,  and  signed  by  him,  as  follows :  "Boston, 
April  8,  1870.  In  consideration  of  one  dollar  and  other  good  and 
valuable  considerations  paid  to  me  by  T.  H.  Smith,  the  receipt  whereof 
is  hereby  acknowledged,  I  do  hereby  assign  to  said  Smith  all  my 
right,  title  and  interest  to  the  within  written  instrument."  This  as- 
signment was  recorded  on  the  same  day.  On  March  12,  1873,  the 
defendant,  by  a  similar  indorsement  on  the  lease,  assigned  the  lease 
to  John  Carney.  The  plaintiff*  had  no  knowledge  of  this  assignment, 
and  it  was  not  recorded  until'  June  14,  1877. 

On  April  10,  1876,  the  heir  at  law  of  Nancy  J.  Fuller  brought  an 
action  against  the  plaintiff  upon  the  covenant  in  the  lease,  for  the 
taxes  assessed  upon  the  demised  premises  for  the  years  1872,  1873, 
1874  and  1875.  The  plaintiff  requested  the  defendant  to  defend  the 
action;  but,  as  he  did  not  do  so,, the  plaintiff  defended  it,  and  judg- 
ment was  recovered  against  him  in  the  sum  of  $392  damages,  and 
$24.32  costs. 

The  plaintiff  asked  the  judge  to  rule  that  the  assignment  of  the 
defendant  to  Carney  was  not  operative  against  the  plaintiff  in  this 
action,  he  having  no  notice  or  knowledge  of  the  same,  and  it  not  being 
recorded  until  June  14,  1877;  and  that  the  defendant  was  liable  for 
all  the  taxes  which  the  plaintiff  had  paid. 

demand,  repair  the  pipes.  Two  years  after  the  making  of  the  lease  A,  as- 
signed the  reversion  to  B.,  A.  having  neither  painted  the  house  nor  repaired 
the  pipes.  X.  brings  action  against  B.  for  breach  of  the  two  covenants. 
Held,  he  cannot  maintain  his  action  on  the  first  covenant;  he  can  on  the 
second,  no  demand  ever  having  been  made  on  A.,  by  showing  a  demand  on 
B.  and  a  refusal  by  him.     Gerzebek  v.  Lord,  33  N.  J.  Law,  240  (1869). 

A.  leased  premises  to  X.  for  a  term  of  years  and  covenanted  to  keep  the 
premises  properly  heated.  A.  assigned  the  reversion  to  B.,  and  X.  accepted 
B.  as  his  landlord.  Later  there  was  a  negligent  failure  to  keep  the  premises 
properly  heated  and  in  consequence  thereof,  one  of  X.'s  employes  suffered 
personal  injury.  In  an  action  of  tort  by  the  employe  against  A.  setting 
forth  the  above  facts.  Held,  admitting  that  the  complaint  would  state  a 
cause  of  action  as  against  the  landlord  (Glidden  v.  Gbodfellow,  124  Minn. 
101,  144  N.  W.  428,  L.  R.  A.  1916F,  1073  [1913]),  it  does  not  state  a  cause  ot 
•action  as  against  A.  Glidden  v.  Second  Ave.  Investment  Co.,  125  Minn.  471, 
147  N.  W.  658,  L.  R.  A.  19150,  190  [1914]. 

See  Wagner  v.  Van  Schaick  Realty  Co.,  163  App.  Div,  632,  148  N.  Y.  Supp. 
736  (1914). 


390  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

The  judge  refused  so  to  rule;  and  ruled  that  the  defendant  was 
only  liable  for  the  tax  for  the  year  1872 ;  and  ordered  judgment  ac- 
cordingly.    The  plaintiff  alleged  exceptions." 

Endicott,  J.  It  is  clear  that  the  plaintiff  was  liable  to  the  lessor 
upon  the  covenants  of  the  lease  for  the  payment  of  taxes  for  the 
years  1872,  1873,  1874,  1875 ;  although  he  had  assigned  all  his  right, 
title  and  interest  in  the  lease  to  the  defendant  in  1870,  which  as- 
signment was  under  seal  and  duly  acknowledged  and  recorded.  The 
defendant,  as  assignee,  would  also  be  liable  to  the  lessor  for  the  taxes 
accruing  during  his  term,  by  virtue  of  the  privity  of  estate  created  by 
the  assignment.  In  such  a  case,  the  liability  of  the  original  lessee 
does  not  depenci  upon  privity  of  estate,  for  he  has  parted  with  his 
whole  interest,  but  upon  privity  of  contract,  and  continues  during 
the  whole  term ;  while  the  liability  of  the  assignee  continues  only 
during  the  time  he  holds  the  legal  title  to  the  leasehold  estate  under 
his  assignment.  When  the  privity  of  estate  thus  ceases,  his  liability 
to  the  lessor  ceases.  Farrington  v.  Kimball,  126  Mass.  313,  30  Am. 
Rep.  680,  and  cases  cited.    See  Rowland  v.  Coffin,  9  Pick.  52. 

The  plaintiff,  being  thus  liable,  was  sued  by  the  legal  representative 
of  the  lessor  for  these  unpaid  taxes,  and  judgment  having  been  ren- 
dered against  him  for  the  whole  amount,  he  paid  the  same. 

That  a  lessee  can  recover  from  his  assignee,  and  also  from  a  sec- 
ond assignee,  the  taxes  accruing  during  their  terms  respectively  and 
which  the  lessee  has  been  obliged  through  their  default  to  pay  to 
the  lessor,  is  well  settled.  Patten  v.  Deshon,  1  Grav,  325 ;  Burnett  v. 
Lynch,  5  B.  &  C.  589 ;  Moule  v.  Garrett,  L.  R.  5  Ex.  132 ;  s.  c,  7 
Ex.  101 ;  Farrington  v.  Kimball,  ubi  supra.  The  question  presented 
in  this  case  is  whether  the  plaintiff  is  entitled  to  recover  from  the 
defendant,  not  only  the  taxes  for  1872,  when  the  defendant  was  ac- 
tually in  possession,  but  also  the  taxes  for  the  following  years,  when 
Carney  was  in  possession,  to  whom  the  defendant  had  transferred  the 
lease  in  1873  by  an  assignment,  not  recorded  until  1877.  The  lease 
was  for  the  term  of  fifteen  years  from  January  1,  1870. 

The  assignee  of  a  lessee  takes  the  whole  estate  of  the  lessee  in  the 
premises,  subject  to  the  performance  on  his  part  of  the  covenants 
running  with  the  land,  under  the  terms  of  the  lease.  By  accepting  and 
entering  under  the  assignment,  the  law  implies  a  promise  to  perform 
the  duties  thus  imposed  upon  him.  If  through  his  neglect  or  refusal 
to  perform  them,  the  lessee  is  obliged  to  pay  rent,  taxes  or  other 
sums  of  money  to  the  lessor  under  the  covenants  of  his  lease,  he  may 
recover  the  same  from  his  assignee.  Whether  the  lessee  may  recover 
from  his  assignee  such  sums  as  he  has  been  obliged  to  pay,  arising  out 
of  the  default  of  a  second  assignee  to  whom  the  first  assignee  has 
assigned  all  his  interest,  presents  a  very  diff'erent  question,  in  the  ab- 
sence of  an  express  agreement  to  do  so  in  the  instrument  of  assign- 
ment. For  the  implied  promise  to  perform  the  duty  imposed  upon  him 
by  the  acceptance  of  the  assignment  must  be   limited  to   the   time 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  391 

while  he  holds  the  estate  under  the  assignment,  and  while,  by  virtue 
of  his  privity  of  estate  with  the  lessor,  he  is  liable  to  him  for  the 
performance  of  the  covenants.  In  other  words,  the  implied  promise 
cannot  include  the  payment  of  any  sums,  except  those  which  as  as- 
signee he  assumes,  and  for  which,  when  he  assigns  the  lease,  he  is  no 
longer  liable  to  the  lessee.     Wolveridge  v.  Steward,  1  Cr.  &  M.  644, 

The  presiding  judge,  therefore,  rightly  ruled  that  the  defendant 
was  only  liable  to  the  plaintiff  for  the  tax  of  1872. 

It  is  immaterial  that  the  assignment  by  the  defendant  to  Carney 
was  not  recorded.  The  provisions  of  the  Gen.  Sts.  c.  89,  §  3,  have 
no  application  here;  and  the  failure  of  Carney  to  record  the  assign- 
ment cannot  affect  the  rights  or  liability  of  the  defendant  in  this  case. 
See  Parsons  v.  -Spaulding,  130  Mass.  83. 

Exceptions  overruled.*" 


MASCAL'S  CASE. 
(Court  of  Common  Bench,  15S7.     1  Leonard,  62.) 

Mascal  leased  a  house  to  A.  for  years  by  indenture,  by  which  A. 
covenanted  with  Mascal  to  repair  the  house  leased,  and  that  it  should 
be  lawful  for  Mascal  his  heirs  and  assigns  to  enter  into  the  house 
to  see  in  what  plight  for  matter  of  reparation  the  said  house  stood,  and 
if  upon  any  such  view,  any  default  should  be  found  in  the  not  repair- 
ing of  it,  and  thereof  warning  be  given  to  A.  his  executors,  &c.  then 
within  four  months  after  such  warning,  such  default  should  be  amend- 
ed :  the  house  in  the  default  of  the  lessee  became  ruinous :  Mascal 
granted  the  reversion  over  in  fee  to  one  Carre,  who  upon  view  of  the 

4  0  See  Burnett  v.  Lynch,  5  B.  &  C.  589  (1826);  Bender  v.  George,  92  Pa. 
36  (1879) ;  State  v.  Martin,  14  Lea  (Tenn.)  92.  52  Am.  Rep.  167  (18S4).  Com- 
pare Bonner  v.  Tottenham  Building  Soc,  [1S99]  1  Q.  B.  161  (1898). 

A.  leased  premises  to  X.  by  a  long  term  lease,  X.  covenanting  to  pay  the 
rent.  A.  assigned,  the  reversion  to  B.  X.  assigned  the  lease  to  Y.  by  writ- 
ten assignment  under  seal  "in  consideration  of  the  assumption  by  the  said" 
Y.  "of  all  the  obligations  and  liabilities  of  the  lessee  arising  under  said 
lease."  B.  dealt  with  Y.  as  his  tenant.  Y.  assigned  the  lease  to  Z.,  but  con- 
tinued to  pay  the  rent  for  a  time ;  he  later  ceased  to  pay ;  Z.  made  no  pay- 
ments. In  an  action  of  covenant  by  B.  against  X.,  Y.,  and  Z.,  the  trial  court 
held  that  Y.  and  Z.  were  both  personally  liable  for  the  rent  accruing  sub- 
sequent to  the  assignment  by  Y.  to  Z.  Y.  appealed.  In  affirming  the  deci- 
Bion  of  the  lower  court  with  respect  to  the  right  of  B.  (appellee)  against 
Y.  (appellant)  and  Z.  (McGinniss),  the  court  said: 

"The  appellant  received  a  conveyance  of  the  leasehold  estate,  received  pos- 
session of  such  estate,  and  assumed  to  pay  the  rent.  There  was  thereby 
established  between  the  appellant  and  the  appellee  a  privity  of  contract  and 
a  privity  of  estate.  That  privity  of  estate  was  terminated  by  the  conveyance 
and  transfer  of  possession  of  the  demised  premises  to  McGinniss.  But  the 
privity  of  contract — the  contractual  liability  of  the  appellant — was  not  thu.s 
terminated.  No  valid  reason  is  apparent  to  us  why  the  appePant  should  not 
pty  the  rent  he  assumed."  Springer  v.  De  Wolf,  194  111.  224,  62  N.  E.  542. 
56  L.  R.  A.  465,  88  Am.  St.  Rep.  1.55  (1901). 

Compare  Seventy-Eighth  Street  &  Broadway  Co.  v.  Purcell  Mfg.  Co.,  92 
Misc.  Rep.  178,  155  N.  Y.  Supp.  259   (1915). 


392  RIGHTS  IN  THE   LAND   OF  ANOTHER  (Part  2 

house  gave  warning  to  A.  of  the  default,  &c.  which  is  not  repayred, 
upon  which  Carre,  as  assignee  of  Mascal,  brought  an  action  of  cove- 
nant against  A.  It  was  moved  by  Fenner,  Serjeant,  that  the  action  did 
not  lye,  because  the  house  became  ruinous  before  his  interest  in  the 
reversion;  but  the  opinion  of  the  whole  Court  was  against  him,  for 
that  the  action  is  not  conceived  upon  the  ruinous  estate  of  the  house, 
or  for  the  committing  of  waste,  but  for  the  not  repayring  of  it  within 
the  time  appointed  by  the  covenant,  after  the  warning,  so  as  it  is  not 
material  within  what  time  the  house  became  ruinous,  but  within  what 
time  the  warning  was  given,  and  the  default  of  the  reparation  did 
happen.** 


STODDARD  v.  EMERY. 

(Supreme  Court  of  Pennsylvania,  1889.     128  Pa.  436,  18  Atl.  339.) 

[On  April  26,  1876,  Stoddard  leased  land  to  Emery,  the  latter  cove- 
nanting to  sink  one  oil  well  within  four  months,  and  to  sink  a  second 
well  if  the  flow  from  the  first  one  should  be  large  enough  to  justify 
it.  The  first  well  was  sunk  within  the  time  provided.  On  January 
7,  1878,  Stoddard  conveyed  his  reversion  to  James.  The  second 
well  Avas  sunk  in  1881. 

This  was  an  action  of  covenant,  brought  by  Stoddard  for  not 
sinking  the  second  well  within  a  reasonable  time.  The  lower  court 
ruled  that  the  plaintiff  was  limited  to  showing  that  there  was  an  un- 
reasonable delay  before  January  7,  1878.  The  plaintiff  excepted. 
Judgment  for  the  defendant,  and  plaintiff  appeals.] 

GrSEn,  J."     *     *     * 

We  agree  with  the  learned  court  below  that  there  was  no  breach  of 
the  lease  prior  to  the  sale  of  the  reversion  by  Stoddard,  in  January, 
1878,  and  that  being  so  there  was  no  right  of  action  by  Stoddard.  If 
there  were  any  breaches  after  the  purchase  of  Janes,  there  would  be  no 
right  of  action  in  Stoddard,  and  there  could  be  no  recovery  in  an  action 
brought  in  his  name.     *     *     * 

Judgment  affirmed.*' 

41  See  Vivian  v.  Champion,  2  Ld.  Raym.  112.5  (1705). 

A.  leased  a  farm  to  X.,  who  covenanted  not  to  cut  the  wood.  A.  assigned 
the  reversion  to  B.  X.  cut  and  carried  away  part  of  the  wood.  B.  assign- 
ed the  reversion  to  C.  Held,  B.  may  maintain  an  action  of  covenant  against 
X.  for  the  wood  cut  prior  to  the  assignment  to  C.  Beach  v.  Barons,  13  Barb. 
(N.  Y.)  305   (1850). 

42  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 

48  See  Beely  v.  Parry,  3  Lev.  154  (1684) ;  Hayes  v.  New  York  Gold  Min. 
Co.  of  Colorado.  2  Colo.  273  (1874).  Compare  Payne  v.  James,  42  La.  Ann. 
230,  7  South.  457   (1890). 


Ch.  4)  LEGAL   ENFORCEMENT   OF   COVENANTS  393 

WILLS  et  al.  v.  SUMMERS. 
(Supreme  Court  of  Minnesota,  1890.     45  Minn.  90,  47  N.  W.  463.) 

Vanderburgh,  J,  The  plaintiffs,  owners  of  the  real  estate  in  con- 
troversy, leased  the  same  to  certain  parties,  and  thereafter,  on  the  2d 
day  of  Februar)',  1885,  the  defendant  became  the  assignee  of  the  lease, 
and  entered  into  possession  of  the  leased  premises  thereunder,  subject 
to  the  covenants  and  stipulations  therein,  and  has  since  continued  in 
such  possession,  and  paid  the  rent  agreed  on.  The  lease  contained  a 
covenant  requiring  the  lessees  "to  pay  all  rates,  taxes,  or  assessments 
on  the  premises  during  the  continuance  of  the  lease."  On  the  1st  day 
of  January,  1889,  the  premises  were  subject  to  the  payment  of  $501.74 
taxes,  which  became  payable  on  the  last-mentioned  date.  On  the  21st 
day  of  February,  1889,  the  plaintiffs,  lessors,  granted  their  entire  in- 
terest and  estate  in  the  premises  to  one  Murphy,  by  deed  of  general 
warranty,  with  covenant  against  incumbrances;  and  on  the  26th  day 
of  March,  1889,  the  plaintiffs  paid  and  satisfied  the  taxes  above  refer- 
red to  in  full.  And  thereafter,  in  December,  1889,  they  brought  this 
action  against  the  defendant  assignee  in  possession,  to  recover  the 
amount  so  paid.  The  trial  court  held  that  the  action  would  not  lie,  be- 
cause the  estate  had  passed  to  Murphy,  and  plaintiffs  had  no  longer 
any  title  or  interest  therein. 

Conceding  that,  in  the  absence  of  more  specific  language  in  the  cove- 
nant to  pay  the  taxes,  the  tenant  was  entitled  to  delay  the  payment 
thereof  until  they  became  "delinquent"  under  the  statute,  this  is  no  rea- 
son why  the  plaintiffs  might  not  pay  them  sooner,  because  the  covenant 
ran  to  them  as  owners,  and  it  was  immaterial  to  defendant  whether  he 
paid  the  same  to  plaintiffs  or  the  treasurer ;  and  if  the  plaintiffs  had 
a  right  to  pay  the  taxes,  or  were  bound  to  do  so,  by  reason  of  their  re- 
lation to  tlie  leasehold  estate,  they  would  be  entitled  to  recover  them 
back  of  defendant,  in  case  of  his  ultimate  default.  The  respondent, 
however,  does  not  complain  in  this  court  that  the  taxes  were  prema- 
turely paid  by  the  plaintiffs,  but  contends  that  any  payment  by  them 
after  the  sale  to  Murphy  was  intermeddling,  and,  in  contemplation  of 
law,  a  voluntary  payment  of  the  debt  of  another.  To  this  proposition 
.we  are  unable  to  assent. 

It  is  not  disputed  that  the  plaintiffs  might  have  paid  the  taxes  after 
January  1st,  and  prior  to  the  sale  to  Murphy,  and  subsequently  recov- 
ered the  amount  of  the  defendant;  but  it  is  argued  that,  upon  their 
conveyance  to  Murphy,  this  right  ceased,  for  the  reason,  before  stated, 
that  all  their  interest  in  the  leased  property  had  passed  to  him.  If 
Murphy  had  assumed  the  payment  of  the  taxes,  and  discharged  the 
plaintiffs  from  liability,  by  reason  of  the  lien  thereof,  or  had  taken  a 
meie  quitclaini  deed,  an  altogether  different  case  would  have  been  pre- 
sented. But  plaintiffs'  relations  to  the  property  continued,  as  respects 
their  liability  to  pay  the  taxes,  by  virtue  of  the  covenant  in  their  deed, 


394  RIGHTS    IN   THE   LAND   OF   ANOTHER  (Part  2 

and  the  statute  making  the  same  a  lien  as  against  the  grantors  from 
January  1,  1889.  It  was  still  their  right  and  duty  to  pay  the  same  as 
between  them  and  their  grantee,  Murphy,  though  the  primary  Hability 
to  pay  them  rested  upon  the  defendant,  arising  from  his  privity  of  es- 
tate created  by  the  assignment  of  the  .lease  which  made  the  covenant 
to  pay  the  taxes  binding  on  him.  Gas  Co.  v.  Johnson,  123  Pa.  576,  16 
Atl.  799,  10  Am.  St.  Rep.  553,  and  notes.  Plaintiffs  were  not,  then, 
mere  volunteers  or  intermeddlers  in  discharging  the  incumbrances  on 
the  leased  premises  by  the  payment  of  the  taxes,  which,  as  between 
them  and  Murphy,  it  was  their  duty  to  do  immediately  upon  the  deliv- 
ery of  the  deed,  as  the  covenant  against  incumbrances  is  in  praesenti. 

Where  a  lessee  assigns  a  lease  containing  a  covenant  to  pay  taxes 
which  the  assignee  becomes  liable  to  pay  by  virtue  of  the  assignment, 
and  the  former  is  afterwards  obliged  to  pay  the  same,  because  of  his 
privity  of  contract  with  the  lessor,  he  may  recover  the  same  of  the  as- 
signee, though  his  own  interest  in  the  estate  has  entirely  ceased.  Mason 
V.  Smith,  131  Mass.  511. 

Plaintiffs'  right  of  action  may  be  sustained  under  the  equitable  doc- 
trine of  subrogation,  which  is  now  recognized  at  law,  as  well  as  in 
equity,  and  which  compels  the  ultimate  payment  of  a  debt  by  one  who, 
in  justice  and  good  conscience,  ought  to  pay  it.  Thus,  it  is  admitted 
that  defendant  would  be  bound  to  pay  these  taxes  to  Murphy,  but  plain- 
tiffs were  also  liable  to  him  in  praesenti  upon  their  covenant,  and  as 
the  previous  owners  of  the  property,  so  that  upon  the  payment  thereof 
by  the  latter,  a  right  to  recover  the  amount  thereof  ultimately  from  the 
defendant  accrued  to  the  plaintiff's. 

Under  the  terms  of  the  lease,  we  are  of  the  opinion  that  the  cove- 
nant to  pay  the  taxes  would  be  satisfied  by  the  payment  thereof  at  any 
time  before  they  became  delinquent,  June  1,  1889;  but  this  is  not  ma- 
terial in  this  action,  except  as  to  the  question  of  interest,  because  it  was 
not  commenced  till  long  afterwards.  The  item  of  $72.83  paid  by  plain- 
tiffs in  October,  1889,  had  not  become  due  or  payable  when  this  action 
was  brought,  and  cannot  be  recovered  herein. 

The  order  denying  a  new  trial  is  reversed,  and  the  case  will  be  re- 
manded, with  directions  to  render  judgment  for  the  plaintiffs  for  the 
sum  of  $501.74,  with  interest  from  June  1,  1889. 


Ch,  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  395 

(b)  Assignment  op  Part  Interests 

CONGHAM  V.  KING. 
(Court  of  King's  Bench,  1631.     Cro.  Car.  221.) 

Covenant  against  the  defendant  as  assignee  of  an  assignee,  for  not 
repairing  of  an  house  let  inter  alia. 

The  defendant  takes  issue  upon  the  mean  assignment  of  the  lease 
laid  in  the  declaration. 

Wright,  after  verdict  for  the  plaintiff,  took  divers  exceptions  to  the 
declaration  in  arrest  of  judgment,  that  tlie  plaintiff  shows  the  lease  to 
be  to  J.  S.  and  by  him  devised  to  J.  D.  and  made  J.  N.  his  executor, 
and  that  he  virtute  legationis  entered  and  assigned  to  W.  S.  and  he 
entered  and  assigned  one  house,  parcel  of  the  premises,  to  the  defend- 
ant, who  entered  and  made  spoil  in  an  hall  and  chamber,  parcel  of  the 
demised  premises,  &c.     *     *     * 

The  next  exception  alleged  was,  that  the  defendant  is  but  assignee 
of  parcel  of  the  things  demised ;  and  then  he  is  not  chargeable  with  this 
covenant,  no  more  than  the  assignee  of  parcel  shall  be  charged  in  debt 
for  the  rent;  but  the  action  lies  against  the  first  lessee,  as  it  is  held 
Walker's  case,  3  Co.  23.  Sed  non  allocatur;  for  this  covenant  is 
dividable,  and  follows  the  land,  with  which  the  defendant,  as  assignee, 
is  chargeable  by  the  common  law,  or  by  the  statute  of  32  Hen.  8,  c.  37. 
Whereupon  it  was  adjudged  for  the  plaintiff.** 


HOLFORD  V.  HATCH. 
(Court  of  King's  Bencli,   1779.     1  Doug.   1S3.) 

This  was  an  action  of  covenant,  for  rent  in  arrear,  brought  against 
the  defendant  as  assignee  of  one  Saunders.  The  declaration  stated,  (in 
the  common  form,)  that  the  plaintiff  demised  to  Saunders  for  seven 
years,  by  virtue  whereof  he  entered  and  was  possessed,  and  that  after- 
wards, all  the  estate,  right,  title,  and  interest,  of  Saunders,  in  the  prem- 
ises, came  to  the  defendant,  by  assignment  thereof,  by  virtue  whereof 
he  entered  and  was  possessed,  and  that,  after  the  assignment,  rent  had 
become  due,  which  the  defendant  had  not  paid.  The  defendant  plead- 
ed, that  all  the  estate,  right,  title,  and  interest,  of  Saunders  in  the  prem- 
ises, did  not  come  to  him  by  assignment  thereof  in  manner  and  form 
as  the  plaintiff  had  alleged. 

On  the  trial,  it  appeared,  that  the  defendant  was  in  possession  of  tlie 
premises  during  the  time  when  the  rent  in  arrear  became  due,  but  that, 
by  the  deed  under  which  he  held,  they  were  conveyed  to  him,  by  Saun- 
ders, for  a  day,  or  some  days  less  than  the  original  term,  and  that  he  had 
actually  surrendered  them  before  the  action  was  brought.     Some  re- 

4*  Part  of  the  opinion  is  omitted. 


c?-^ 


396  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

ceipts  also  were  produced  for  rent  which  had  been  paid  by  the  defend- 
ant to  the  plaintiff,  and  which  run  thus :  "Received  of  Saunders  by  the 
hands  of  Hatch." 

Upon  this  evidence,  it  was  contended,  at  the  trial,  which  came  on  be- 
fore Lord  Mansfield,  at  the  Sittings  for  Middlesex,  in  last  Hilary  Term ; 
1.  That,  in  point  of  law,  a  person  holding  of  the  first  lessee,  by  an 
under-lease,  like  the  present,  is  not  liable  to  be  sued  by  the  original 
lessor,  on  the  covenant  for  rent  contained  in  the  original  lease ;  2.  That 
the  fact  put  in  issue  on  the  record,  viz.  that  all  the  estate,  &c.  of  Saun- 
ders came  to  the  defendant,  was  not  proved. 

A  verdict  was  found  for  the  plaintiff,  but  Lord  Mansfield  saved  the 
points  made  by  the  defendant's  counsel,  for  the  opinion  of  the  court. 
Accordingly,  in  Hilary  Term,  (Thursday,  the  4th  of  February,)  Daven- 
port obtained  a  rule  to  shew  cause  why  the  verdict  should  not  be  set 
aside,  and  a  nonsuit  entered.  He  cited  Poultney  v.  Holmes,  M.  7  G. 
3.  at  N.  Pr.  before  Pratt,  Ch.  Just.  1  Str.  405,  Crusoe  v.  Bugby,  C.  B. 
T.  11  G.  3,  3  Wils.  234,  since  reported  2  Blackst.  766,  and  Hare  v. 
Cator,  B.  R.  E.  18  G.  3  [f  58].    Vide  infra,  note  (21),  p.  184. 

Lord  Mansfield.  It  is  fit  that  we  should  look  into  the  authorities ; 
therefore  let  the  case  stand  over. 

The  court  were  understood  to  be  for  some  time  divided,  and  judg- 
ment was  not  given  till  this  day,  when  Lord  Mansfield  delivered  their 
unanimous  opinion,  as  follows : 

Lord  Mansfield.  This  is  an  action  of  covenant  by  a  lessor  against 
an  under-lessee,  and  the  single  question  is,  whether  the  action  can  be 
maintained  against  him,  as  being,  substantially,  an  assignee.  For  some 
time,  we  had  great  doubts ;  we  have  bestowed  a  great  deal  of  consid- 
eration on  the  subject,  and  looked  fully  into  the  books,  and  it  is  clear- 
ly settled,  (and  is  agreeable  to  the  text  of  Littlefton,)  that  the  action  can- 
not be  maintained,  unless  against  an  assignee  of  the  whole  term. 

The  rule  made  absolute,** 


EARL  OF  DERBY  v.  TAYLOR  and  another,  Executors  of  Twist. 

(Court  of  King's  Bench,  1801.     1  East,  502.) 

This  was  an  action  for  a  breach  of  covenant,  wherein  the  declara- 
tion stated,  that  the  late  Earl  of  Derby,  whose  grandson  and  heir  the 
plaintiff  is,  being  seised  in  fee  of  a  messuage  and  other  premises  there- 
in described,  by  indenture  dated  14th  December,  1756,  made  between 
the  late  earl  of  the  one  part,  and  Thomas  Taylor  of  the  other  part, 

*bA.  leased  a  house  and  land  to  X.  for  30  years  by  deed  at  a  rental  of 
£150  per  annum,  and  covenanted  to  supply  wood  to  repair  the  house.  A.  as- 
signed his  reversion  to  B.  X.  assigned  to  Y.  for  30  years  all  his  interest 
in  that  part  of  the  premises  including  the  house  at  an  annual  rental  of  £30 
payable  to  X.  The  lease  contained  other  covenants  varying  from  those  of 
the  head  lease.  B.  did  not  supply  wood  to  repair  the  house.  Held,  Y.  may 
bring  covenant  against  B.  Palmer  v.  Edwards,  1  Doug.  186  (1783). 


J,4^^^ 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  397 

demised  to  Taylor,  his  heirs  and  assigns,  the  said  premises,  &c.  for 
the  Hves  of  three  persons  therein  named,  all  of  whom  are  now  dead. 
That  Taylor  covenanted  for  himself,  his  heirs,  and  assigns,  with  the 
late  earl,  his  heirs  and  assigns,  to  repair  and  keep  in  repair  the  prem- 
ises demised  during  the  said  term,  and  at  the  end  of  the  term  to  deliv- 
er them  up  so  repaired  to  the  late  earl,  his  heirs  and  assigns.  The  dec- 
laration further  stated  the  entry  and  seisin  of  Taylor  the  lessee,  the 
death  of  the  late  earl,  and  the  descent  of  the  reversion  to  the  plaintiff. 
And  that  afterwards  all  the  estate,  right,  title  and  interest,  property, 
claim  and  demand  whatsoever,  of  T.  Taylor,  of  and  in  the  demised 
premises  with  the  appurtenances  came  to  and  vested  in  J.  Twist  by 
assignment;  by  virtue  whereof  Twist  entered  into  and  became  seised 
of  the  demised  premises  for  the  remainder  of  the  term  demised  to  Tay- 
lor. The  declaration  further  stated  the  death  of  the  three  persons 
for  whose  lives  the  estate  was  demised ;  and  averred  that  Twist  suf- 
fered the  premises  to  be  out  of  repair,  and  that  at  the  end  of  the  term 
they  were  delivered  up  to  the  plaintiff  without  being  repaired.  The 
defendants  pleaded  several  pleas,  but  the  only  material  one  was  that 
which  denied  that  all  the  estate,  right,  title  and  interest,  property,  claim 
and  demand  whatsoever  of  T.  Taylor,  of  and  in  the  demised  premises, 
came  to  and  vested  in  J.  Twist  by  assignment  thereof,  in  manner  and 
form  as  alleged  in  the  declaration. 

The  indenture  [of  assignment]  in  question,  dated  24th  of  January, 
30  Geo.  2,  between  T.  Taylor  and  T.  Harrocks  of  the  one  part,  and 
James  Twist  of  the  other  part,  witnessed  that  in  consideration  of  2451. 
Taylor  and  Harrocks  hath  demised,  granted,  bargained,  sold,  assigned, 
transferred,  and  set  over,  and  by  these  presents  doth  demise,  &c.  to 
Twist,  his  executors,  administrators,  and  assigns,  all  that  messuage 
and  tenement,  &c.  held  by  lease,  under  Edward  Earl  of  Derby,  and 
now  in  possession  of  Twist,  his  assignees,  &c.  and  all  the  estate,  right, 
title,  interest,  goodwill,  and  tenant  right,  sole  power  of  leasing  or  re- 
newing leases  of  the  said  premises,  property,  benefit,  advantage,  claim 
and  demand  whatsoever,  both  at  law  and  in  equity,  of  them  the  said 
Taylor  and  Harrocks,  of,  in,  or  to  the  same,  every  or  any  part  or  par- 
cel thereof,  to  have  and  to  hold  the  said  messuage,  tenement,  &c.  and 
all  and  singular  other  the  premises  abovementioned,  and  intended  to 
be  hereby  assigned,  with  their  appurtenances ;  unto  Twist,  his  execu- 
tors, administrators,  and  assigns,  from  the  day  next  before  the  day  of 
the  date  of  these  presents,  for  and  during  and  unto  the  full  end  and 
term  of  ninety-nine  years  from  thence  next  ensuing  and  following,  and 
fully  to  be  complete  and  ended,  if  Harrocks,  J.  Twist,  and  T.  Twist, 
the  three  lives  in  the  indenture  of  lease  thereof  named,  or  any  of  them, 
should  so  long  live :  and  that  in  as  large,  ample,  and  beneficial  way, 
manner  and  form,  to  all  intents,  constructions  and  purposes,  as  they 
the  said  T.  Taylor  and  T.  Harrocks,  their  heirs,  executors,  or  admin- 
istrators, or  any  of  them,  can,  may,  might,  or  could,  have  held  and 
enjoyed  the  same  if  these  presents  had  not  been  made;   yielding  and 


398  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

paying  therefore  yearly  during  the  said  term  unto  the  lord  and  owner 
of  the  reversion  and  inheritance  of  the  said  hereby  assigned  premises 
the  yearly  rent  of  5s.  6d.,  &c.  Then  followed  the  usual  covenants  for 
quiet  enjoyment,  for  freedom  from  other  incumbrances  than  the  rent, 
and  for  further  assurance ;    executed  by  the  proper  parties. 

Lord  Kenyon,  C.  J.*^  *  *  *  /pj^g  question  at  present  before 
the  Court  is  as  to  what  estate  passed  to  Twist  under  the  indenture? 
It  cannot  be  said  that  a  term  of  99  years  is  co-extensive  in  law  with  an 
estate  of  freehold:  and  here  are  no  words  by  which  the  freehold  of 
which  the  original  lessees  were  seised  was  conveyed  to  the  defendant's 
testator.  Then  how  can  we  say  that  the  whole  interest  in  the  lease 
passed  to  him.  The  conveyance  of  all  the  grantor's  "estate,  right,  title 
interest,"  &c.  to  a  man  and  his  executors  for  years  cannot  convey  a 
freehold.  Such  words  mean  no  more  than  all  their  interest,  &c.  in  the 
legal  estate  thereby  granted ;  and  we  cannot  give  those  words  a  larger 
operation  than  the  parties  themselves  have  declared  they  should  have. 

Per  Curiam.    Postea  to  the  Defendant. 


McNEIL  V.  KENDALL  et  al. 
AMES  V.  SAME. 

(Supreme  Judicial  Court  of   Massachusetts,   ISSO.     12S   Mass.   245,   35   Am. 

Rep.  373.) 

Endicott,  J.  In  the  first  of  these  cases  McNeil,  the  plaintiff,  as 
assignee  under  a  levy  of  sale  of  the  leasehold  estates  of  Samuel  T. 
Ames,  created  under  cerfain  indentures  from  Lucy  Ann  Harris,  seeks 
to  recover  rent  from  the  defendants,  to  whom  Samuel  T.  Ames  had 
leased,  prior  to  the  sale,  a  portion  of  the  premises  included  in  the  in- 
dentures. 

In  the  second  case  James  B.  Ames,  the  plaintiff,  contends  that  the 
lease  from  Samuel  T.  Ames  to  the  defendants  operated  in  law  as  an 
assignment  of  his  entire  term  in  the  premises  described  therein,  and 
not  as  an  underlease;  and  that  there  was  no  estate  or  reversion  in 
those  premises  remaining  in  Samuel  T.  Ames  which  could  be  levied 
upon  and  sold.  Under  an  assignment,  therefore,  after  the  levy  and 
sale,  made  to  him  by  Samuel  T.  Ames  of  the  rent  resei-ved  in  the  de- 
fendant's lease,  James  B.  Ames  seeks  to  recover  the  same  from  the 
defendants. 

The  cases  were  argued  together  as  one  case,  and  will  be  so  consid- 
ered by  the  court  in  determining  which  plaintiff  is  entitled  to  recover 
the  rent  from  the  defendants. 

It  appears  from  the  record  in  these  cases,  that  Lucy  Ann  Harris 
was,  in  1866,  the  owner  in  fee  of  two  estates  in  Boston,  one  on  Sum- 
mer Street,  and  the  other  on  Lincoln  Street.     By  an  indenture  dated 

*6  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  399 

in  September  of  that  year,  she  demised  to  Samuel  T.  Ames,  for  the 
term  of  twenty  years  from  January  1,  1867,  the  estate  on  Summer 
Street;  and,  at  the  same  time,  by  another  indenture,  she  demised  to 
him  for  the  same  term  the  estate  on  Lincoln  Street,  which  was  bound- 
ed in  part  by  the  rear  line  of  the  estate  on  Summer  Street.  It  is  un- 
necessary to  recite  these  indentures  at  length ;  with  the  exception  of 
the  amount  of  rent  reserved,  and  certain  provisions  in  regard  to  the 
removal  and  erection  of  buildings,  they  do  not  differ  materially.  Un- 
der the  first  named,  the  lessee  was  bound  by  his  covenants  to  take  down 
the  building  standing  on  the  estate  on  Summer  Street,  and  to  erect 
thereoh  a  good  and  substantial  warehouse,  of  not  less  than  a  certain 
value,  and  to  keep  the  same  in  repair,  and  insured  for  the  benefit  of 
the  lessor.  Under  the  second,  he  had  the  right  to  take  down  the  build- 
ings on  the  estate  on  Lincoln  Street,  and,  if  he  did  so,  he  was  also  re- 
quired to  build  thereon  a  good  and  substantial  warehouse.  It  was 
stipulated  in  this  indenture  that  the  lessee  should  keep  the  buildings 
standing  thereon,  or  such  as  he  might  erect  in  their  place,  in  good  re- 
pair. Under  these  indentures,  which  were  duly  recorded,  Samuel  T. 
Ames  went  into  possession  of  the  whole  estate.  The  city  of  Boston, 
in  the  exercise  of  the  right  of  eminent  domain,  took  a  portion  of  each 
lot  for  the  purpose  of  widening  the  street  on  which  it  fronted,  and 
laid  out  the  same  as  a  highway  before  any  of  the  instruments  were 
executed  which  are  the  subject  of  this  controversy. 

Under  the  powers  and  in  accordance  with  the  covenants  contained 
in  these  indentures,  Samuel  T.  Ames  took  down  all  the  old  buildings  on 
the  demised  premises,  and,  having  full  power  and  control  over  the 
same,  treated  them  as  one  estate,  and  erected  two  warehouses  thereon, 
obliterating  the  old  lines  of  division.  One  warehouse  was  built  on 
Summer  Street,  which  covered  all  the  land  included  in  the  first  in- 
denture, excepting  that  which  was  taken  for  the  highway,  and  also 
covered  a  portion  of  the  rear  of  the  land  demised  by  the  second  inden- 
ture. It  was  constructed  of  brick  and  stone  and  was  four  stories  high. 
The  other  was  built  on  Lincoln  Street,  as  widened,  of  brick  and  stone, 
two  stories  high,  and  covered  a  portion  of  the  land  described  in  the 
second  indenture.  A  space  or  area  was  left  open  between  the  two 
buildings,  and  a  passageway  was  constructed  five  feet  wide  and  plank- 
ed, leading  from  Lincoln  Street  on  the  southerly  side  of  the  premises, 
in  a  direct  line,  under  the  last-named  building,  and  across  the  area,  to 
a  door  in  the  rear  part  of  the  building  fronting  on  Summer  Street. 
Each  building  had  windows  opening  upon  the  area,  and  the  building  on 
Summer  Street  had  windows  overlooking  the  building  on  Lincoln 
Street.  It  is  stated  in  the  defendants'  bill  of  exceptions,  in  the  first 
case,  that  this  passageway  was  left,  constructed  and  designed  for  the 
use  of  the  building  on  Summer  Street,  in  connection  with  the  door  in 
the  rear  of  the  same,  and  was  the  only  means  of  access  from  the  high- 
way to  the  area,  and  also  to  the  door  fronting  thereon  in  the  rear  of 
the  building  on  Lincoln  Street. 


400  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

In  July,  1873,  Samuel  T.  Ames,  by  an  indenture  duly  recorded,  leas- 
ed to  the  defendants  for  the  remainder  of  his  term  "the  store  and 
warehouse  Nos.  119  and  121  on  Summer  Street  in  Boston,"  giving  no 
other  description  of  the  premises,  and  making  no  allusion  to  the  area 
or  the  passageway  in  the  rear,  except  in  a  clause  which  recites  that 
"it  is  understood  that  the  rear  building  on  Lincoln  Street  shall  not  be 
carried  up  any  higher,  so  as  to  obstruct  the  light  during  the  continu- 
ance of  this  lease.  Also  agreed  that  the  party  occupying  the  small 
building  on  Lincoln  Street  shall  have  a  right  through  the  passageway." 
This  lease  is  in  the  common  form,  and  contains  the  provisions,  that 
the  lessor  shall  rebuild  in  case  of  fire,  and  remit  during  the  time  5t  fair 
proportion  of  rent;  that  the  lessees  shall  pay  the  rent  reserved  and 
taxes,  and  deliver  up  the  premises  at  the  end  of  the  term,  and  not  make 
or  suffer  any  waste;  and  that  the  lessor  may  enter  to  view  and  make 
improvements,  and  may  expel  the  lessees  if  they  fail  to  pay  rent  and 
taxes,  or  make  or  suffer  any  strip  or  waste. 

Whatever  may  be  the  legal  effect  of  this  indenture,  it  is  evident 
that  the  parties  contemplated  only  a  sub-lease  of  a  portion  of  the 
whole  estate,  as  improved  by  Samuel  T.  Ames. 

Before  giving  this  lease,  Samuel  T.  Ames,  in  May,  1873,  demised, 
by  an  indenture  to  H.  P.  Bambauer  for  the  remainder  of  his  term,  "the 
two-story  building,  No.  2  Lincoln  Street,  in  Boston,"  giving  no  other 
description,  and  not  alluding  to  the  area,  but  referring  to  the  passage- 
way in  these  words :  "Passageway  partly  under  the  building  is  not 
included  in  this  lease."  This  lease  was  surrendered  in  August,  1873, 
and  at  the  same  time  Samuel  T.  Ames  executed  another  lease  of  the 
same  premises  for  the  same  term  to  Jacob  Bambauer,  which  contains 
the  same  provision  in  regard  to  the  passageway.  Neither  of  these 
leases  was  ever  recorded.  The  last  was  assigned  by  Samuel  T.  Ames 
to  the  plaintiff,  McNeil,  after  he  had  purchased  the  leasehold  interest 
of  Ames  in  the  Lincoln  Street  estate,  which  was  sold  at  the  sheriff's 
sale. 

By  neither  of  these  indentures  did  Samuel  T.  Ames  convey  the  land 
included  within  the  area  or  the  passageway.  It  is  clearly  to  be  implied 
from  the  language  of  the  lease  to  the  defendants,  taken  in  connection 
with  the  fact  that  the  passageway  was  then  laid  out  from  Lincoln 
Street  to  the  door  in  the  rear  of  the  defendants'  premises,  that  a  right 
in  that  passageway  passed  by  the  indenture  to  the  defendants  in  com- 
mon with  Samuel  T.  Ames  and  the  occupants  of  the  other  building. 
It  is  also  clear  that  the  defendants  acquired  an  easement  for  the  light 
afforded  to  their  building  by  the  area,  under  the  provision  that  the 
building  on  Lincoln  Street  should  not  be  "carried  up  higher  so  as 
to  obstruct  the  light  during  the  continuance  of  this  lease."  These 
easements  thus  granted  to  the  defendants,  in  the  land  not  conveyed  in 
either  indenture  and  in  the  land  occupied  by  the  other  building,  consti- 
tuted a  portion  of  the  premises  demised  to  the  defendants  to  be  enjoyed 


Ch.  4)  LKGAL    ENFORCEMENT   OF   COVENANTS  401 

in  common  with  Samuel  T.  Ames,  and  such  other  persons  as  might  oc- 
cupy the  building  on  Lincoln  Street. 

It  was  in  this  condition  of  the  property,  that  all  the  right,  title  and 
interest  of  Samuel  "T.  Ames,  in  the  two  estates,  held  by  him  under 
the  two  indentures  from  Lucy  Ann  Harris,  were  seized  and  sold,  at  a 
sheriff's  sale  in  November  1875,  upon  an  execution  issued  against  him 
in  favor  of  the  Lancaster  National  Bank.  The  plaintiff,  McNeil,  pur- 
chased the  leasehold  estate  fronting  on  Summer  Street,  which  was  duly 
conveyed  to  him  by  the  sheriff.  One  E.  K.  Harris  purchased  the  oth- 
er, and,  having  received  a  deed  of  the  same  from  the  sheriff,  conveyed 
his  interest  therein  to  McNeil,  who  thus  became  assignee  in  law  of  the 
entire  interest  of  Samuel  T.  Ames  in  the  whole  estate,  to  the  same 
extent  as  if  Ames  had  himself  transferred  all  his  leasehold  interests 
therein.  Sanders  v.  Partridge,  108  Mass.  556,  558.  It  was  not  con- 
tended at  the  argument  that  these  sales  were  in  any  respect  irregular 
or  invalid. 

There  is  no  question  that  some  portion  of  the  leasehold  estates  of 
Samuel  T.  Ames  in  the  premises  passed  to  McNeil  by  the  levy  and 
sale.  The  lease  to  Jacob  Bambauer  was  not  recorded,  and  cannot  be 
treated  as  valid  against  the  levy;  and  the  subsequent  assignment  of  it 
to  McNeil  cannot  in  any  way  operate  to  his  prejudice.  That  portion  of 
the  premises  therefore  passed  to  him,  as  well  as  the  area  and  passage- 
way, subject  to  the  defendants'  easements  therein;  together  with  such 
interests  and  rights  of  reversion  as  Samuel  T.  Ames  had  in  the  strips 
of  land  taken  for  highway.  Whether  the  remaining  premises  passed  to 
him  depends  upon  the  question,  whether  the  defendants  hold,  as  as- 
signees of  a  part  of  the  premises  for  the  whole  term,  or  as  sub-lessees. 

Before  dealing  with  that  question,  it  is  proper  to  allude  to  some  dif- 
ficulties which  might  have  arisen  on  this  state  of  facts.  In  improving 
the  property,  Samuel  T.  Ames  disregarded  the  lines  of  division,  as 
set  out  in  the  two  indentures  from  Lucy  Ann  Harris,  and  erected  the 
building  on  Summer  Street  partly  on  land  included  in  the  first,  and 
partly  on  land  included  in  the  second  indenture;  and,  in  leasing  this 
building  to  the  defendants,  he  attached  to  the  whole  estate  thus  con- 
veyed certain  easements  in  the  other  land  included  in  the  second  in- 
denture. In  selling  his  leasehold  estates  under  both  indentures,  of 
course  they  must  be  sold  separately,  and  if  they  had  been  bought  and 
were  now  held  by  different  persons,  each  purchaser  would  have  ac- 
quired only  a  part  of  the  building  occupied  by  the  defendants;  and 
a  very  serious  question  would  have  arisen,  in  regard  to  their  respective 
rights,  as  against  the  defendants,  who  hold  the  whole  building,  and 
the  easements  connected  therewith,  as  one  estate.  But  this  question  is 
not  before  us,  for  McNeil  holds  whatever  passed  by  the  sale  of  both. 
Nor  is  it  denied  that  Samuel  T.  Ames  had  the  right  thus  to  disregard 
the  old  lines  of  division  in  improving  the  property,  as  one  estate; 
and  all  parties  claim  interests  under  him  in  the  entire  premises  occu- 
BiG. Rights — 26 


402  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

pied  by  the  defendants.  As  between  them,  therefore,  we  must  assume 
that  it  is  one  estate,  irrespective  of  all  lines  of  division  and  of  the  fact 
that  Samuel  T.  Ames  obtained  his  interest  by  separate  and  distinct 
indentures;  and  the  cases  have  been  argued  before  us  on  this  "as- 
sumption. 

It  is  unnecessary  to  cite  authorities  to  the  proposition,  that  to  con- 
stitute an  assignment  by  a  lessee  of  the  whole,  or  of  a  specific  part, 
of  his  leasehold  estate,  the  entire  interest  of  the  lessee  in  all  the  prem- 
ises included  in  the  assignment  must  pass  to  the  assignee.  Even  if  the 
instrument  may  be  in  form  a  sub-lease,  yet  if  it  conveys  the  whole  es- 
tate it  will  operate  as  an  assignment.  In  deciding,  therefore,  wheth- 
er this  lease  to  the  defendants  is  in  law  an  assignment,  we  must  ascer- 
tain from  all  its  provisions,  as  applied  to  the  subject-matter,  whether 
Samuel  T.  Ames  conveyed  his  entire  term  and  interest  in  the  prem- 
ises, which  the  defendants  have  the  right  to  occupy  and  enjoy  under 
their  lease  from  him. 

What  then  passed  to  the  defendants  from  Samuel  T.  Ames?  The 
land  under  the  building,  the  building  itself,  the  right  to  use  the  pas- 
sageway in  the  rear  extending  to  Lincoln  Street,  the  right  to  enjoy 
the  light  in  the  area,  secured  by  the  provision  that  the  space  above  the 
two-story  building  on  Lincoln  Street  shall  remain  open  and  unob- 
structed. These  were  not  mere  personal  rights,  but  easements  ap- 
purtenant to  and  a  part  of  the  premises  conveyed,  and  necessary  for 
the  complete  enjoyment  of  that  portion  which  opened  on  the  area. 
Dennis  v.  Wilson,  107  Mass.  591;  P,eck  v.  Conway,  119  Mass.  546. 
And  if  Samuel  T.  Ames  or  those  claiming  under  him  had  raised  the 
building  on  Lincoln  Street  higher  than  two  stories,  the  defendants 
would  have  been  entitled  to  relief  in  equity  to  enforce  the  restriction. 
Parker  v.  Nightingale,  6  Allen,  341,  83  Am.  Dec.  632.  The  defendants 
thus  acquired  the  whole  interest  in  the  warehouse  on  Summer  Street 
and  the  land  on  which  it  stood,  and  subordinate  and  limited  interests 
in  all  the  other  land  between  the  warehouse  and  Lincoln  Street.  These 
cannot  be  separated  or  divided,  but  form  one  estate,  carved  out  of 
the  whole  leasehold  estate  of  Samuel  T.  Ames,  acquired  from  Lucy 
Ann  Harris. 

It  is  plain,  therefore,  that  Samuel  T.  Ames,  while  he  conveyed  to 
the  defendants  his  whole  term  for  years,  did  not  convey  his  whole  in- 
terest in  the  premises,  which  the  defendants  had  the  right  to  occupy 
and  enjoy  under  their  lease;  but  retained  in  himself  all  the  land,  not 
covered  by  the  warehouse  on  Summer  Street,  subject  to  the  easements 
granted  to  the  defendants.  The  interest  which  he  conveyed  to  the  de- 
fendants was  a  portion  of  the  entire  estate,  and  not  his  whole  estate  in 
a  portion  of  the  same.  "For  there  is  a  diversity  between  the  whole 
estate  in  part,  and  part  of  the  estate  in  the  whole,  or  of  any  part."  Co. 
Lit.  3<S5a;    Shep.  Touchst.  199. 

While  this  case  differs  in  many  of  its  features  from  that  of  Patten 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  403 

V.  Deshon,  1  Gray,  325,  yet  the  point  there  determined  is  decisive  of 
this,  independently  of  the  considerations  stated  above.  In  that  case, 
one  Walker,  a  lessee  for  years,  had  given  a  lease  in  a  portion  of  the 
premises  by  metes  and  bounds,  for  his  entire  term,  to  the  defendant, 
and  afterwards  assigned  all  his  right,  title  and  interest  in  his  lease 
to  the  plaintiff ;  and  it  was  held  that  the  plaintiff  could  recover  from 
the  defendant  the  rent  accruing  upon  his  lease.  Chief  Justice  Shaw 
in  delivering  the  judgment  said :  "It  would  be  too  narrow  a  construc- 
tion to  hold  that  this  was  only  an  assignment  of  the  instrument  or  doc- 
ument ;  it  means  all  the  right,  title  and  interest,  which  he  holds^  or  has 
title  to  hold,  under  the  instrument.  It  clearly  embraced  the  transfer 
of  all  right  to  the  use  and  enjoyment,  for  the  residue  of  the  term,  of 
all  that  part  of  the  leased  premises  which  had  not  been  underlet  to 
Deshon.  Had  the  sublease  to  Deshon  been  surrendered,  or  forfeited 
by  non-payment  of  rent,  the  assignment  would  have  passed  to  the  as- 
signee the  right  to  use  and  enjoy  that  part  of  the  premises  let  to  De- 
shon, for  the  residue  of  the  term.  It  was  therefore  a  substantial  in- 
terest intended  to  be  assigned."  "And  it  is  to  be  considered,  that  Pat- 
ten, the  plaintiff,  by  force  of  that  assignment  of  Walker  to  him,  for 
the  whole  term,  had  become  assignee  of  the  lessee,  and  as  such  liable 
to  the  action  of  the  original  lessor,  for  the  entire  rent.  In  order  to 
enable  him  to  meet  that  obligation,  equity  required  that  he  should  have 
the  entire  benefit  of  the  term,  including  not  only  the  use  and  occupa- 
tion of  the  part  not  underlet,  but  also  the  rent  accruing  from  sub- 
lessees, of  all  such  parts  of  the  premises  as  were  held  by  them;  and 
therefore  it  must  have  been  the  intention  of  the  parties,  in  the  assign- 
ment, that  the  assignee  should  take  upon  himself  the  burden  of  paying 
the  whole  rent,  and  be  entitled  to  the  benefit  of  the  whole  of  the  leased 
premises ;  and  that  Walker,  the  original  lessee  and  assignor,  being  re- 
lieved from  the  payment  .of  any  rent  to  the  original  lessor,  could  have 
no  right  to  receive  rent  of  a  sub-lessee." 

In  the  case  at  bar,  McNeil  acquired  under  the  levy  and  sale  all  the 
right,  title  and  interest  of  Samuel  T.  Ames  in  a  considerable  portion 
of  the  leasehold  estate  not  let  to  the  defendants.  By  the  terms  of  the 
lease  to  the  defendants,  Samuel  T.  Ames  had  the  right  to  re-enter 
if  the  defendants  failed  to  pay  rent,  or  committed  strip  or  waste,  and 
this  right  passed  to  McNeil  under  the  conveyance  from  the  sheriff  of 
all  the  right,  title  and  interest  of  Samuel  T.  Ames  in  the  leasehold  es- 
tates. 

We  are  not  aware  that  the  decision  in  Patten  v.  Deshon  has  ever 
been  judicially  questioned;  nor  has  any  case  been  called  to  our  at- 
tention, in  which,  upon  the  same  state  of  facts,  a  different  rule  has 
been  declared.  It  has  been  cited  with  approval  in  numerous  cases  in 
our  own  reports ;  it  has  been  the  law  in  Massachusetts  for  more  than 
twenty  years,  and  lays  down  a  just  and  equitable  rule,  not  inconsistent 
with  the  established  principles  of  the  law.     Bultum  v.  Deane,  4  Gray, 


404  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

385,  393;  Hunt  v.  Thompson,  2  Allen,  341;  Way  v.  Reed,  6  Allen, 
364;  Sanders  v.  Partridge,  108  Mass.  558,  560;  McNeil  v.  Ames,  120 
Mass.  481;  Porter  v.  Merrill,  124  Mass.  534;  Farrington  v.  Kimball, 
126  Mass.  313,  30  Am.  Rep.  680.  See,  also,  Shumway  v.  Collins,  ^ 
Gray,  227. 

The  plaintiff,  McNeil,  entered  upon  the  premises  after  the  sale, 
notified  Lucy  Ann  Harris  of  his  assignment,  and  that  he  would  pay 
rent  to  her;  and  also  gave  notice  to  the  defendants  that  they  must 
pay  rent  to  him ;  and  we  are  of  opinion,  for  the  reasons  stated,  that  he 
is  entitled  to  recover.  It  therefore  becomes  unnecessary  to  consider 
the  other  questions  so  ably  argued  at  the  bar,  or  to  review  the  numer- 
ous cases  cited  by  the  counsel.  By  the  terms  of  the  report,  in  the  first 
case  the  exceptions  must  be  overruled ;  and  in  the  second  case  the  en- 
try must  be 

Plaintiff  nonsuit.*^ 


U 


ATTOE  v.  HEMMINGS. 

(Court  of  King's  Bench,  1612.     2  Bulst.  281.) 

In  an  action  of  covenant,  the  case  appeared  to  be  this,  Thomas  Tav- 
erner,  1  Jac,  made  a  lease  for  years  unto  Salisbury,  who  entered,  and 
was  thereof  possessed ;  Taverner  doth  devise  the  reversion  unto  Mary 
his  wife  for  her  life,  who  grants  this  over  to  the  three  plaintiffs  for 
forty  years,  if  she  shall  so  long  live ;  Salisbury  attorns,  makes  his  wife 
executrix,  and  dies ;  in  the  first  indenture  divers  covenants  are  con- 
tained, and  upon  which  diverse  questions  were  moved;  Salisbury  in 
the  first  indenture  doth  covenant  to  pay  i37.  rent  unto  Thomas  Taver- 
ner the  lessor,  for  nonpayment  of  this  £37.  ren-t,  the  action  of  covenant 
is  brought,  by  an  assignee  of  an  assignee  of  the  reversion.     *     *     * 

Coke,  Chief  Justice.*^  This  is  as  common  as  may  be,  that  an  as- 
signee of  a  reversion  for  part,  shall  have  the  benefit  of  a  covenant. 
*  *  *  I  do  hold  it  clearly,  that  the  grantee  of  part  of  tlie  estate, 
being  the  plaintiffs,  shall  take  benefit  and  advantage  of  this  covenant 
here,  in  Leonard's  case,  in  the  C.  B.  it  was  adjudged,  that  a  grantee  for 
years  of  the  reversion,  should  take  advantage  of  a  condition,  within 
the  statute  of  32  H.  8,  cap.  24,  and  it  is  very  plain  and  clear,  that  such 
a  grantee  may  have  an  action  of  covenant  at  the  common  law,  the  old 

4  7  For  other  cases  on  the  distinction  between  an  assignment  and  a  sublease, 
see  Poultnev  v.  Holmes,  1  Str.  405  (1720) ;  Beardman  v.  Wilson,  L.  R.  4  C. 
P.  57  (1868/;  Cameron,  etc.,  v.  Tobin,  104  Minn.  333,  116  N.  W.  838  (1908) ; 
St.  Joseph  &  St.  L.  Ry.  Co.  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co.,  135  Mo.  173,  36 
S.  W.  602.  33  L.  R.  A.  607  (1896) ;  Stewart  v.  Long  Island  R.  Co.,  102  N.  Y. 
601,  8  N.  E.  200,  55  Am.  St.  Rep.  844  (1886) ;  Presby  v.  Benjamin,  169  N.  Y. 
377,  62  N.  E.  430,  57  D.  R.  A.  317  (1902) ;  Davis  v.  Vidal,  105  Tex.  444,  151  S. 
W.  290,  42  L.  R.  A.  (N.  S.)  1084  (1912). 

*8  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


^  .  -       ^-'-^ 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  405 

difference  was  between  a  covenant  personal  and  real;  this  appears  in 
Spencer's  Case,  5  pars.  fol.  18,  where  divers  cases  are  put  to  this  pur- 
pose.    *     *     * 

Judgment  was  given  for  the  plaintiff.*' 


TWYNAM  V.  PICKARD. 
(Court  of  icing's  Bench,  1818.     2  Baru.  &  Aid.  105.) 

Covenant.  Declaration  stated,  that  one  H.  N.  Middleton  being  seis- 
ed in  fee  of  the  premises,  demised  the  same  by  lease  to  the  defendant 
for  fourteen  years,  and  that  the  defendant  covenanted  to  repair,  &c. 
The  declaration  then  stated  the  entry  of  the  defendant  upon  the  prem- 
ises, the  reversion  still  remaining  in  Middleton ;  that  the  latter  by  lease 
and  release  conveyed  his  reversion  to  W.  H.  and  W.  T.  in  fee ;  that 
they  became  seised  of  the  reversion  in  fee,  and  that  they  on  the  15th 
day  of  February,  1810,  by  lease  and  release,  conveyed  to  the  plaintiff' 
the  reversion  of  part  of  the  said  demised  premises,  whereby  he  became 
seised  of  the  reversion  of  that  part  of  the  premises  in  fee.  The  dec- 
laration then  alleged  breaches  of  covenant  for  not  repairing  that  part 
of  the  premises,  the  reversion  of  which  had  been  conveyed  to  plaintiff. 
General  demurrer  and  joinder. 

BaylEy,  J.^°  Although  it  has  never  been  expressly  decided,  that 
the  assignees  of  the  reversion  of  part  of  the  demised  premises  can 
maintain  this  action  against  the  lessee,  yet,  when  the  question  comes 
fairly  to  be  considered,  I  cannot  entertain  any  doubt  that  covenant  will 
lie  both  by  and  against  the  assignee  of  the  reversion  of  part  of  tlie 
premises.  The  32  H.  8.  c.  34.  s.  1.,  enacts,  "that  the  grantees  or  as- 
signees of  any  reversion  or  reversions,  shall  have  the  like  advantages 
against  tlie  lessees  by  entry  for  non-payment  of  the  rent,  or  for  doing 
of  waste  or  other  forfeiture,. and  also  shall  have  all  such  like  and  the 
same  advantage,  benefit,  and  remedies,  by  action  only,  for  not  perform- 
ing of  other  conditions,  covenants,  or  agreements  contained  and  ex- 
pressed in  their  leases,  demises,  or  grants  against  the  lessees,  as  the  les- 
sors or  grantors  themselves  might  have  had  at  any  time."  The  words 
therefore  apply  to  conditions  as  well  as  to  covenants,  and  are  sufficient- 
l)'  large  to  include  persons  who  are  grantees  of  the  reversion,  either  of 
the  whole  or  part  of  the  property,  which  is  the  subject  of  the  lease. 

*»Aoc.:     Wright  v.  Burroughs,  3  C.  B.  685  (1846). 

A.  leased  a  house  to  X.,  who  covenanted  to  deliver  it  up  in  good  repair  at 
the  termination  of  the  lease.  The  lease  expired  on  March  25,  1889.  Before 
tJie  expiration  of  the  lease  A.  executed  to  B.  a  lease  of  the  same  premises 
for  25  years  from  March  25,  1889.  X.  delivered  up  the  premises  at  the  termi- 
nation of  the  lease,  but  they  were  in  bad  condition.  Held,  A.  may  maintain 
covenant  against  X.     Joyner  v.  Weeks,  [1S91]  2  Q.  B.  31. 

8  0  Opinion  of  Abbott,  J.,  is  omitted. 


406  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

That  part,  however,  which  apphes  to  conditions  which  in  their  very 
nature  are  entire,  is  necessarily  confined  to  the  assignees  of  the  rever- 
sion of  the  whole  premises.  The  authorities  cited  in  the  course  of  the 
argument,  to  shew  that  the  assignees  of  the  reversion  of  part  are  not 
within  the  act,  were  cases  of  conditions,  and  do  not  apply  to  covenants. 
I  do  not  agree  to  the  distinction  taken  in  the  argument,  between  the 
first  and  second  sections  of  the  act,  for  the  words  used  in  both  sections 
are  substantially  the  same,  and  must  receive  the  same  construction. 
The  only  difference  is,  that  the  words  in  the  first  section  apply  to  the 
assignee  of  the  reversion ;  those  in  the  second  section,  to  the  assignee 
of  the  term.  Then,  except  in  cases  where  the  construction  of  the  statute 
is  confined  by  the  use  of  the  word  condition,  and  the  nature  of  the 
thing,  there  is  no  good  reason  why  the  word  assignee  in  the  statute 
should  not  be  held  to  extend  to  tlie  assignee  of  the  reversion  in  part, 
as  well  as  of  the  whole  of  the  premises.  In  Palmer  v.  Edwards,  1 
Dougl.  187,  it  was  held,  that  the  assignee  of  part  of  the  premises  from 
the  lessee  might  maintain  covenant  against  the  lessor ;  and  there  Buller,^ 
J.,  considered  the  remedies  as  mutual.  In  Congham  v.  King  [Cro,  Car. 
222],  it  was  held,  that  the  lessor  might  maintain  covenant  against  the 
assignee  of  part  of  the  premises  demised.  These  authorities  seem  to 
shew,  that  the  severance  of  the  estate  demised  does  not  take  away  the 
mutual  remedies.  I  have  always  understood  it  to  be  clear  law,  that 
covenant  was  maintainable  by  the  assignee  of  the  reversion  in 
part.     *     *     * 

HoLROYD,  J.  I  am  also  of  opinion  that  this  action  is  maintainable. 
The  cases  cited  in  argument  apply  only  to  conditions,  with  respect  to 
which  the  statute  expressly  enacts,  "that  assignees  shall  have  the  like 
advantages  against  the  lessees  by  entry  for  non-payment  of  rent,  or  for 
doing  of  waste  or  other  forfeiture,  as  the  lessors  would  have  had." 
Now  if  the  lessor  assigned  the  reversion  of  part  of  the  premises  to  an- 
other, his  right  of  entry  would  be  gone,  for  in  Knight's  Case,  5  Coke,. 
55b,  it  was  expressly  held  that  the  severance  of  any  part  of  the  rever- 
sion destroyed  the  whole  condition  (which  was  entire,  and  the  breach 
of  which  gave  one  entire  right  of.  entry  into  the  whole  premises  on  non 
payment  of  rent) ;  that  being  so,  the  lessor  at  common  law  would  have 
no  right,  in  such  a  case,  to  vacate  the  lease  by  entry,  and  consequently 
his  assignee  would  not  have  that  right  under  the  statute.  But  that  does 
not  apply  to  the  case  of  covenants,  for  there,  although  the  lessor  has 
granted  away  part  of  the  demised  premises,  still  at  common  law  he 
might  maintain  covenant  against  the  lessee,  and  therefore  it  seems  to 
me,  that  his  assignee  of  part  of  the  demised  premises  is  entitled  under 
the  statute  to  maintain  that  action. 

Judgment  for  plaintiff. °^ 

61  See  Leiter  v.  Pike,  127  111.  287,  326,  20  N.  E.  23  (1889). 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  407 

DEMAREST  v.  WILLARD. 
(Supreme  Court  of  New  York,  1828.     8  Cow.  206.) 

Covenant  on  a  lease,  tried  at  the  Saratoga  circuit,  November  28th, 
1826,  before  Walworth,  C.  Judge. 

At  the  trial,  the  following  matters  were  in  evidence:  the  plaintiff 
by  lease  under  seal,  dated  March  29th,  1819,  demised  a  house  and  lot 
to  the  defendant's  testator,  for  two  years  from  the  1st  of  May,  then 
next,  at  an  annual  rent  of  $600  payable  quarterly.  The  lessee  cove- 
nanted to  pay  the  rent,  and  that  no  alterations,  &c.,  should  be  made  in 
the  house,  or  any  nails  or  wooden  pins  driven  into  the  floors,  walls  or 
ceilings,  or  any  damage  done,  during  the  term;  and  that  he  would 
deliver  up  the  premises  in  the  same  repair  at  the  end  of  the  term, 
as  at  the  date  of  the  lease,  all  reasonable  wear  excepted.  The  plain- 
tiff claimed  for  rent  arrear,  $50.14;  for  injury  to  the  house  by  nails, 
pins,  &c. ;  and  that  the  premises  were  not  delivered  up  in  good  re- 
pair.   Considerable  damage  was  proved. 

The  defence  was  an  assignment  indorsed  on  the  lease,  dated  April 
29th,  1819,  by  the  lessor  to  one  Haswell,  as  follows:  "For  value 
received,  I  do  hereby  assign,  transfer  and  set  over  unto  John  Haswell, 
of,  &c.,  his  heirs  and  assigns,  the  within  lease,  and  all  the  rents  which 
may  and  shall  from  time  to  time  become  due  and  payable  during  the 
term,"  &c.,  with  an  authority  to  Haswell  to  collect  the  rents,  and  a 
covenant  to  ratify  and  confirm  what  he  might  do  in  the  premises.-. 

The  judge  decided  that  this  assignment  was  a  bar  to  the  plaintiff's 
recovery  upon  both  branches  of  his  claim. 

The  plaintiff  then  proved  a  re-assignment  from  Haswell  to  the 
plaintiff,  dated  August  15th,  1821,  thus:  "The  balance  of  rent  and 
interest  thereon  due  this  day,  is  $36.48,  in  consideration  of  which,  I 
do  hereby  re-assign  to  Samuel  Demarest,  (the  plaintiff,)  all  my  right 
and  interest  of,  in  and  to  the  within  lease,  and  all  the  rent  due  and 
to  become  due  thereon." 

The  judge  decided  that  this  did  not  revest  a  right  of  action:  and 
non-suited  the  plaintiff,  who  excepted. 

Curia,  per  Savage,  Ch.  J.  The  question  to  be  decided  is,  whether 
the  plaintiff  has  a  right  to  maintain  an  action  in  his  own  name,  either 
on  the  covenant  to  pay  rent,  or  the  covenant  to  surrender  the  prem- 
ises in  good  repair  at  the  end  of  the  term. 

To- ascertain  the  rights  of  the  parties,  it  is  necessary  to  examine 
the  assignment  to  Haswell ;  and  see  what  was  conveyed  to  him.""  The 
plaintiff  assigned  the  lease  of  Willard,  and  all  the  rents  to  become 
due  during  the  term.  No  interest  in  the  premises  leased,  except  the 
rent  issuing  from  them,  is  contained  in  this  assignment.  The  rever- 
sion is  not  conveyed  in  terms,  nor  can  it  be  by  implication.  When 
rent  is  reserved,  it  is  incident,  though  not  inseparably  so,  to  the  re- 
version.    (Co.  Litt.  143.)     The  rent  may  be  granted  away,  reserving 


408  RIGHTS  IN  THE   LAND   OF  ANOTHER  (Part  2 

the  reversion;  and  the  reversion  may  be  granted  away,  reserving  the 
rent,  by  special  words.  By  a  general  grant  of  the  reversion,  the  rent 
will  pass  with  it  as  incident  to  it;  but  by  a  general  grant  of  the  rent, 
the  reversion  will  not  pass.  The  incident  passes  by  the  grant  of  the 
principal;  but  not  e  converso.  (Co.  Litt.  151;  2  Jac.  L.  D.  Rever- 
sion.) The  assignment  to  Haswell  did  not  convey  the  reversion ;  and 
it,  of  course,  remained  in  the  plaintiff.  It  was  perfectly  within  the 
power  of  the  plaintiff  to  have  assigned  the  rent  to  one,  and  the  re- 
version to  another;  but  he  conveyed  nothing  beside  the  rent,  unless 
something  more  passed  by  the  words,  "the  within  lease."  It  cannot 
be  contended,  that  these  words  conveyed  the  fee  of  the  house  and  lot. 
If  anything  was  intended  more  than  the  instrument  itself,  it  must  be 
the  plaintiff's  interest  in  the  premises  during  the  term.  But  until 
the  term  was  ended,  the  lessee  could  not  be  called  upon  to  surrender 
the  possession  of  the  premises  in  good  repair.  All  the  interest  and 
authority  of  the  plaintiff  during  the  term  was  to  collect  the  rent.  Au- 
thority for  this  purpose  was  given  to  Haswell,  by  the  assignment; 
but  it  is  altogether  silent  as  to  transferring  any  right  to  damages, 
which  the  plaintiff  might  be  entitled  to  by  reason  of  a  breach  of  the 
other  covenants  in  the  lease. 

That  the  right  to  prosecute  upon  a  covenant  to  leave  the  premises 
in  repair,  belongs  to  the  assignee  of  the  reversion,  was  decided  in  the 
case  of  Matures  v.  Westwood,  (Cro.  Eliz.  599,  617.)  But  there  is  a 
great  difference  between  an  assignee  of  the  reversion,  and  an  assignee 
of  the  rent.  By  an  assignment,  the  assignor  parts  with  his  whole  inter- 
est in  the  thing  assigned ;  and  puts  the  assignee  in  his  place.  (4  Cruise, 
111.)  There  is  no  doubt  of  the  correctness  of  this  rule;  but  the  ques- 
tion still  recurs,  what  was  the  thing  assigned?  I  am  satisfied,  and  have 
endeavored  to  show,  that  nothing  but  the  rent  was  assigned.  Our 
statute  to  enable  grantees  of  reversions  to  take  advantage  of  conditions 
to  be  performed  by  lessees,  which  is  substantially  a  copy  of  the  33 
Henry  8,  ch.  34,  relates  solely  to  grantees  of  reversions ;  and  as  the 
reversion  has  never  been  granted  in  this  case,  the  statute  has  no  appli- 
cation. That  the  assignee  can  take  advantage  of  all  covenants  which 
run  with  the  land,  is  perfectly  settled,  but  not  of  such  as  are  collateral. 
Glover  v.  Cope,  (4  Mod.  81,)  a  case  under  the  statute,  decided  that  the 
assignee  of  the  reversion  might  sue  the  lessee.  The  same  point  was 
held  in  Bally  v.  Wells,  (3  Wils.  29,)  and  that  on  a  covenant  which 
runs  and  rests  with  the  lands,  an  action  lies  for  or  against  the  assignee 
at  the  common  law,  although  the  assignees  are  not  named  in  the'  cove- 
nant ;  quia  transit  terra  cum  onere.  And  it  was  held  that  a  covenant 
to  repair  is  one  which  concerns  the  land  and  runs  with  it.  I  agree, 
therefore,  that  if  the  reversion  had  been  assigned  to  Haswell,  this  ac- 
tion could  not  be  maintained ;  but  we  are  constantly  brought  back  to 
the  assignment. 

Littlewood  v.  Jackson,  decided  by  this  court.  May  term,  1820,  is 
supposed  to  control  this  case.    One  Bailey  had  a  term  of  1590  years; 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  409 

and  he  demised  to  the  defendant  1550  years  of  his  term,  reserving  a 
rent  of  il2.15s.  6d.  Afterwards  Bailey  assigned  to  the  plaintiff  the 
rent  and  all  remedies  for  its  collection,  and  all  the  estate,  &c.,  claim 
and  demand  of  Bailey  to  the  rent,  to  have  and  to  hold  for  the  1550 
years.  After  the  plaintiff  became  entitled  to  the  rent,  ill8.  3s.  5d., 
being  rent  for  9  years  and  3  quarters,  fell  due  and  was  in  arrear. 
The  verdict  being  for  the  plaintiff,  the  defendant  moved  in  arrest  of 
judgment,  on  the  ground  that  the  plaintiff  had  not  alleged  that  he 
was  the  assignee  of  the  reversion.  But  the  court  denied  the  motion. 
As  I  understand  this  case,  it  decides  that  the  assignee  of  the  rent  may 
recover  it  in  that  character,  without  being  assignee  of  the  reversion. 
It  is  an  authority  to  show  that  Haswell  might  sue  for  and  recover 
the  rent  in  arrear;  and  consequently  the  plaintiff  cannot;  but  it 
proves  nothing  as  to  the  other  covenants  in  the  lease. 

The  re-assignment  by  Haswell  to  the  plaintiff,  was  perfectly  useless 
in  respect  to  the  maintaining  of  this  suit.  Arrears  of  rent  are  a  chose 
in  action ;  and  not  assignable  like  accruing  rent.  Haswell  was  as- 
signee of  the  rent;  and  the  whole  became  due  before  the  re-assign- 
ment. If  the  plaintiff  can  recover  the  arrears,  it  must  be  in  the  name 
of  Haswell. 

My  conclusion  is,  1.  That  the  rents  were  assigned  to  Haswell;  but 
not  the  reversionary  interest  in  the  premises ;  that  the  plaintiflf,  there- 
fore, cannot  recover,  in  this  action,  the  arrears  of  rent;  and  2.  That 
the  reversion  having  always  remained  in  the  plaintiff,  and  the  covenant 
to  surrender  up  the  premises  in  good  repair  not  being  broken  until 
the  term  ended,  no  one  but  the  owner  of  the  reversion  can  prosecute 
for  the  breach  of  that  covenant;  that,  consequently,  the  plaintiff  is 
entitled  to  recover  upon  the  breach  of  that  covenant ;  and  for  the 
injury  generally  done  to  the  freehold. 

The  non-suit  must  be  set  aside ;  and  a  new  trial  granted,  with  costs 
to  abide  the  event. 

Rule  accordingly.''^ 

s2Acc.:  Bordereaux  v.  Walker,  85  111.  App.  S6  (1899).  Compare  Allen  v. 
Wooley,  1  Blaokf.  (Ind.)  148  (1821);  Huerstel  v.  Lorillard,  29  N.  Y.  Super. 
Ct.  260  (1867). 


410  EIGHTS   IN   THE   LAND   OF   ANpTHER  (Part  2 

Hi.  Not  under  thb  Statute  32  Henry  Vlii 
BUCKWORTH  v.  SIMPSON  &  BENNER. 

(Court  of  Exchequer,  1835.     1  Cromp.,  M.  &  R.  834.) 

Assumpsit.  The  first  count  of  the  declaration  stated  that,  by  an 
agreement  dated  6th  December,  1805,  M.  M.  Buckworth,  J.  C.  Reeding, 
and  P.  Alaboine,  as  trustees  and  testamentary  guardians  of  the  plain- 
tiff, let  a  messuage,  land,  and  premises,  in  the  county  of  Lincoln,  to 
one  William  Barber  to  have  and  to  hold,  from  the  6th  day  of  April 
then  next  ensuing,  for  and  during  the  term  of  one  year  from  thence 
to  be  complete  and  ended,  and  thenceforward  from  year  to  year  so 
long  as  all  parties  should  think  proper,  either  of  them  giving  notice  in 
writing  to  the  other  of  his  wish  and  intention  to  determine  the  said 
demise  and  tenancy,  at  least  six  months  previous  to  the  expiration 
of  any  one  year,  at  the  rent  therein  mentioned.  The  declaration  then 
set  out  various  undertakings  by  the  said  William  Barber  as  to  the 
management  of  the  farm,  and  also  a  promise  by  him  to  keep  the  build- 
ings and  premises  in  complete  repair,  and  to  leave  them  in  good 
and  tenantable  repair  at  the  end  of  the  year  when  they  should  be  quit- 
ted. It  then  alleged  that  the  plaintiff  came  of  age  22d  December,  1815; 
and  that,  in  consideration  that  he  had  undertaken  to  let  the  premises 
to  William  Barber  on  the  same  terms  as  in  the  agreement  made  with 
his  guardians,  the  said  William  Barber  undertook  to  perform  the  same 
in  all  things  on  his  behalf  to  be  performed ;  that,  on  the  5th  of  Jan- 
uary, 1821,  the  said  William  Barber  made  his  will,  and  authorized  and 
directed  the  defendants,  together  with  one  C.  M.  Edmunds,  to  con- 
tinue his  business  in  trust  for  certain  persons  and  purposes,  and  died 
on  the  2d  of  March,  1821 :  that  the  two  defendants  proved  the  will, 
and  that  all  the  estate,  right,  title,,  and  interest  of  the  said  William 
Barber,  of,  in,  and  to  the  said  demised  premises  came  by  assignment 
to  the  defendants.  It  then  further  alleged,  that,  in  consideration  of 
the  premises,  and  that  the  plaintiff  would  permit  them  to  continue  in 
possession  of  the  demised  premises  as  such  assignees,  and  would  omit 
to  give  them  six  months'  notice  to  quit  at  the  proper  time  and  ac- 
cording to  the  terms  in  the  agreement  mentioned,  the  defendants  un- 
dertook to  perform  the  agreement  in  all  things  to  be  performed  on 
the  behalf  of  the  said  William  Barber.  The  declaration  then  averred 
that  the  said  William  Barber  was  tenant  to  the  plaintiff  until  his  death, 
and  that  after  his  death  the  defendants  became  and  were  the  tenants, 
and  continued  as  such  tenants  in  possession  to  the  plaintiff  for  a  long, 
space  of  time,  to  wit,  until  the  6th  of  April,  1833 ;  and  although  the 
plaintiff  suffered  them  to  remain  in  possession,  and  omitted  to  give 
them  six  months'  notice  to  quit  at  the  proper  time  and  according  to 
the  terms  of  the  agreement,  yet  that  the  defendants,  as  such  assignees 
as  aforesaid,  during  the  tenancy  since  the  death  of  the  said  William 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  411 

Barber  until  the  6th  April,  1833,  did  not  keep  the  premises  in  repair, 
but  delivered  them  up  on  that  day  in  a  bad  and  untenantable  state  of 
repair.     *     *     * 

[Defendant  pleaded  the  general  issue.  Ju4gment  for  the  plaintiff ; 
defendant  obtained  a  rule  nisi  for  a  new  trial.] 

Parke,  B.  *  *  *  ^^  The  declaration  states  the  facts  of  the 
case  correctly  [the  learned  Baron  here  read  the  declaration]  ;  and 
the  promise  alleged  to  have  been  made  by  the  defendants  was,  that, 
in  consideration  of  the  plaintiff  permitting  them  to  continue  in  posses- 
sion of  the  premises,  and  omitting  to  give  notice  according  to  the 
terms  of  the  agreement,  they  would  perform  the  agreement  in  all 
things  to  be  performed  on  the  behalf  of  Barber.  The  question  is, 
whether  this  promise  can  be  implied  by  law.  I  am  of  opinion  that 
it  is  an  implication  of  law,  arising  from  the  situation  of  the  parties ; 
and,  if  it  were  not  so,  great  inconvenience  would  be  felt,  for  this 
species  of  holding  is  very  common.  The  nature  of  the  demise  is 
this,  that  the  party  taking  it  is  to  hold  on  from  year  to  year,  so  long 
as  the  parties  shall  please,  with  the  power  of  notifying  that  dissent  by 
giving  a  notice  to  quit.  Suppose  the  land  to  descend  to  the  heir-at- 
law,  and  he  omits  to  signify  his  dissent  to  its  continuance  by  giving 
notice  to  quit,  the  tenancy  will  continue.  Again,  if  the  tenant  assigns, 
and  the  landlord  do  not  give  notice,  the  assignee  must  hold  on  the  same 
terms.  That  contract  the  law  will  imply;  otherwise  the  consequence 
would  be,  that  no  action  could  be  brought  on  the  original  demise  w^hen 
there  is  an  occupation  from  year  to  year,  and  the  tenant  assigns, 
for  there  is  no  contract  whatever  unless  the  original  contract  is  trans- 
ferred by  operation  of  law.  It  is  contended,  however,  that  the  exec- 
utors of  the  original  landlord,  where  he  is  dead,  must  bring  an  action 
against  the  personal  representative  of  the  original  tenant.  That  would 
be  very  inconvenient ;  and  therefore  it  is  better  to  hold  that  a  new  re- 
lation of  landlord  and  tenant  arises  by  implication  from  the  situation 
of  the  parties,  where  there  is  a  continuance  of  the  occupation,  and 
an  omission  by  those  who  represent  tlie  original  parties  to  give  notice  to 
quit. 

BoLLAND,  B.,  and  Gurney,  B.,  concurred. 

Rule  discharged. 

fi»  Opinion  of  Lord  Abinger.  C.  R.,  is  omitted. 


412  RIGHTS   IN  THE  LAN-D   OF  ANOTHER  (Part  2 

HINSDALE  V.  HUMPHREY. 
(Supreme  Court  of  Connecticut,  1843.    15  Conn.  431.) 

HiNMAN,  J.^*  The  plaintiff,  by  deed  poll,  on  the  10th  day  of  Oc- 
tober, 1827,  leased  certain  premises  to  Ichabod  Loomis,  his  heirs 
and  assigns,  for  so  long  a  time  as  a  certain  store  standing  thereon 
should  continue,  after  the  same  had  been  repaired;  and  in  the  lease, 
is  this  clause :  "After  said  five  years  expires,  the  said  Ichabod  is  to 
pay,  or  his  heirs  or  assigns,  such  rent  as  shall  be  considered  a  reasona- 
ble ground  rent  for  the  land  on  which  the  building  stands,  yearly; 
and  if  the  lessor  and  lessee  shall  be  unable  to  agree  upon  ground 
rent,  then  the  amount  thereof,  from  time  to  time,  shall  be  left  to 
two  indifferent  men  to  determine."  On  the  1st  of  November,  1831, 
Loomis  assigned  his  interest  in  the  unexpired  term,  to  Chester  Hum- 
phrey, who,  on  the  3d  of  July,  1833,  made  a  like  assignment  thereof 
to  the  defendant;  who  thus  took,  and  still  retains,  possession  of  the 
premises.  The  rent  being  in  arrear,  the  plaintiff  has  brought  an 
action  of  covenant,  to  recover  it;  claiming,  that  Loomis,  the  original 
lessee,  though  he  did  not  sign  or  seal  the  deed,  yet,  as  he  accepted  it, 
and  took  possession  of  the  premises  under  it,  he  thereby,  so  far,  be- 
came a  party  to  it ;  that  he  is  liable  in  covenant,  for  the  non-perform- 
ance of  such  conditions  and  stipulations,  as  by  the  deed,  it  was  made 
the  duty  of  the  lessee  to  perform,  and  as  effectually,  as  if  he  had  sign- 
ed, sealed  and  delivered  the  instrument;  and  that  the  defendant,  be- 
ing the  assignee  of  the  premises,  is  also  liable,  in  this  action,  for  the 
non-performance  of  the  covenants,  during  the  time  that  he  has  had  the 
possession  of  the  premises. 

The  declaration  being  demurred  to,  the  only  question  arising  upon 
the  demurrer  is,  whether  covenant  will  lie  against  lessee,  or  assignee 
of  lessee,  for  rent  on  a  lease  sealed  only  by  the  lessor,  in  other  words, 
whether  mutual  covenants  can  arise  upon  a  deed  poll?  The  general 
rule,  that  covenant  will  not  lie,  except  against  him,  who,  by  himself, 
or  his  duly  authorized  agent,  has  sealed  and  delivered  a  deed,  has  not 
been  questioned — nor  could  it  be.  The  very  definition  of  a  covenant, 
a  contract  or  agreement  under  seal,  or  by  deed,  implies  clearly,  that 
to  be  binding,  as  a  covenant,  the  agreement  must  be  sealed  by  the 
obligor,  or  his  agent ;   otherwise,  it  would  not  be  his  deed. 

But,  it  is  said,  there  are  certain  exceptions  to  the  general  rule ;  and 
that  this  case  falls  within  one  of  them.  And  it  is  true,  that  several 
of  the  elementary  writers  do  lay  down  the  proposition,  that  the  cove- 
nantee's acceptance  of  the  deed,  is  such  an  assent  to  the  agreement 
as  will  render  it  binding  on  him.  4  Cruise's  Dig.  c.  25,  p.  393 ;  Com. 
Dig.  tit.  Covenant,  A.  1 ;  1  Sw.  Dig.  571.  If  nothing  more  is  meant 
by  this,  than  the  words,  in  their  literal  interpretation,  imply,  the  prop- 

•4  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  413 

osition  is  not  perhaps  objectionable:  but  supposing  the  writers  in- 
tend by  it  that  the  covenantee's  acceptance  of  the  deed,  is  such  an 
assent  to  the  agreement,  as  will  render  it  binding  on  him  as  a  covenant, 
it  will  be  found  to  be  unsupported  by  the  authority  of  any  adjudged 
case,  and  is  clearly  erroneous  in  principle.  The  cases  usually  referred 
to,  in  support  of  this  doctrine,  are  Green  v.  Home,  1  Salk.  197,  and 
the  case  stated  in  Co,  Litt.  231,  a.  The  case  in  Salk.  has  no  applica- 
tion to  this  case.  The  only  principle  decided  there,  was,  that  a  per- 
son not  named  in  an  indenture,  cannot  have  an  action  on  it.  And  the 
case  stated  in  Co.  Litt.  was  not  an  action  of  covenant,  but  an  ac- 
tion of  debt.  Piatt  on  Cov.  3 ;  Law  Library,  pp.  6  and  9.  Indeed, 
all  the  authorities  on  this  subject  are  very  thoroughly  examined,  by 
Mr.  Piatt;  and  he  says,  that  no  instance  can  be  found,  of  an  action 
of  covenant  having  been  sustained  by  the  courts,  against  one  claiming 
under  a  deed  poll.     *     *     * 

The  question,  whether  covenant  can  be  maintained  against  lessee 
for  rent,  on  a  lease,  sealed  only  by  the  lessor,  has  lately  arisen  in 
the  supreme  court  of  Ohio,  in  the  case  of  Trustees  of  a  section  of 
land  in  Hocking  County  v.  Spencer,  7  Ohio  2d  pt.  p.  149,  and  it  was 
there  held,  that  it  could  not.  And  Grimke,  J.,  who  delivered  the 
opinion  of  the  court,  says,  "Such  a  doctrine  is  unsustained,  either 
on  principle  or  authority,  in  England,  and  has  never  been  asserted  in 
any  of  the  courts  of  America." 

It  is  enough  for  the  purposes  of  this  case,  that  covenant  will  not 
lie ;  without  attempting  to  furnish  the  plaintiff  with  another  remedy. 
But,  as  the  cases  which  go  to  show  that  another  action  may  be  brought, 
also  show,  that  covenant  cannot  lie;  as  covenant  and  assumpsit,  or 
covenant  and  case,  are  not  concurrent  remedies ;  it  is  not  perhaps, 
improper  to  refer  to  the  case  of  Goodwin  v.  Gilbert,  9  Mass.  510,  in 
which  it  was  held,  that  where  certain  duties  were  reserved,  to  be 
performed  by  the  grantee  of  a  deed  poll,  assumpsit  may  be  sustained 
for  the  non-performance  of  them.  And  in  the  case  of  Burnett  et  al. 
v.  Lynch,  5  B.  &  Cres.  589,  (12  E.  C.  L.  327,)  it  was  held,  that  case 
lay  against  the  assignee  by  deed  poll,  who  had  taken  possession  under 
an  assignment  from  the  lessee,  for  breaches  of  covenant,  committed 
during  the  time  that  the  assignee  was  in  possession;  and  Ch.  J.  Ab- 
bott, in  giving  his  opinion,  says,  he  thinks  assumpsit  would  also  lie. 

We,  therefore,  advise  the  superior  court,  that  the  plaiiatiff's  declara- 
tion is  insufficient. 

In  this  opinion  the  other  Judges  concurred. 

Declaration  insufficient.^** 

88  See  Johnson  v.  Muzzey,  45  Vt.  419,  12  Am.  Rep.  214  (1872). 


414  EIGHTS   IN   THE   LAXD   OF   ANOTHER  (Part  2 

STANDEN  V.  CHRISMAS  et  al. 
(Court  of  Queen's  Bench,  1847.     10  Q.  B.  135.) 

Assumpsit.  The  first  count  of  the  declaration  stated  that  the  de- 
fendants were  tenants  to  the  plaintiff  of  a  messuage  and  premises, 
upon  the  terms  that  they  should  during  their  tenancy  keep  the  in- 
terior of  the  messuage  and  premises  in  tenantable  repair.  Breach, 
non-repair.  The  second  count  stated  that  defendants  were  such 
tenants  on  the  terms  that  they  should  use  the  premises  in  a  tenantlike 
manner.  Breach,  that  they  had  used  the  premises  in  an  untenantlike 
manner.  The  third  count  was  the  ordinary  indebitatus  count  for  use 
and  occupation. 

Pleas.  1.  To  the  whole  declaration,  Non  assumpsit.  2.  To  the 
first  count,  a  traverse  of  the  alleged  tenancy.  3.  To  the  first  count, 
performance.  4.  To  the  second  count,  a  traverse  of  the  alleged  ten- 
ancy. 5.  To  the  second  count,  performance.  Issues  were  joined  on 
these  pleas.     *     *     * 

Lord  Denman,  C.  J.^®  in  this  vacation  (February  25th),  delivered 
the  judgment  of  the  Court. 

In  this  case,  the  plaintiff  being  entitled  to  five  eighths,  and  one 
Richardson  to  three  eighths,  of  certain  copyhold  premises,  Richard- 
son, by  lease  in  writing,  not  under  seal,  demised  them  to  the  defend- 
ants in  his  own  name  for  one  year,  at  a  rent  payable  half  yearly,  and 
under  certain  terms  of  repairing.  Before  the  first  half  year's  rent 
became  due,  Richardson  surrendered  his  interest  to  the  plaintiff,  of 
which  the  defendants  had  notice,  and  afterwards  paid  the  half  year's 
rent  to  an  agent  employed  both  by  Richardson  and  the  plaintiff. 

The  present  action  is  for  non-repair,  and  for  use  and  occupation,  to 
recover'  the  last  half  year's  rent ;  and  a  verdict  was  found  for  the 
defendants.  It  was  objected,  at  the  trial,  that  no  evidence  was  given  of 
the  existence  of  a  manor  of  which  the  premises  were  copyhold.  But 
surrenders  purporting  to  be  copies  of  the  rolls  of  the  manor,  and  which 
were  admitted  under  a  Judge's  order,  were  given  in  evidence,  and,  we 
think,  were  abundant  evidence  on  that  point. 

With  regard  to  repairs,  it  was  objected  that  Stat.  32  H.  8,  c.  34,  ap- 
plies only  to  cases  of  demise  by  deed,  and  that  the  assignee  of  the  re- 
version 'cannot  sue  in  assumpsit  on  the  contract  made  by  the  assignor. 
We  are  entirely  of  this  opinion,  and  that  the  verdict  on  the  first  count 
is  right.  So  on  the  second  count,  which  is  on  an  implied  contract  to 
repair  arising  out  of  the  relation  of  landlord  and  tenant.  No  such 
implied  contract  arises  where  the  tenant  holds  under  an  express  con- 
tract which  provides  for  the  very  matter  Therefore,  the  verdict  on 
the  second  count  is  also  right. 

56  The  statement  of  fucts  is  abridged  and  part  of  the  opinion  is  omitted. 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  415 

The  count  for  use  and  occupation  requires  more  consideration.  No 
doubt  the  plaintiff  was  landlord  during  the  time  that  the  rent  in  ques- 
tion accrued,  and  when  it  became  due,  and  was  entitled  to  receive  it. 
He  might,  have  distrained  for  it^  supposing  the  tenancy  to  "have  con- 
tinued; or  he  might  have  brought  an  action  of  debt  for  it.  But  the 
question  is,  whether  an  action  of  assumpsit  will  lie,  in  which  he  states 
that  the  defendants  occupied  by  his  sufferance  and  permission.  It  was 
said  that  a  new  tenancy  might  be  inferred  when  the  defendants  had 
notice  of  the  surrender  to  the  plaintiff ;  but  there  is  no  ground  what- 
ever for  any  such  inference.  It  is  quite  plain  that  the  defendants 
held  under  the  lease  made  by  Richardson,  and  under  that  alone, 
and  the  plaintiff  could  not  have  prevented  them  from  so  holding.  The 
permission  to  occupy  emanated  from  Richardson,  the  grantor  of  the 
lease,  and  was  complete  when  the  lease  was  executed,  and  never  could 
emanate  from  the  person  who  subsequently  became  assignee  of  the 
reversion ;  unless,  indeed,  Richardson  having  granted  for  himself  and 
his  assigns,  the  permission  of  any  person  who  might  become  assignee 
of  the  reversion  during  the  lease  can  be  said  to  be  virtually  included, 
so  that  the  occupation  became  in  point  of  law  permissive  on  the  part 
of  the  assignee  as  soon  as  his  interest  took  place.  We  think  that  this 
is  the  right  view  of  the  case,  and  that,  the  occupation  being  in  point 
of  law  by  the  permission  of  the  plaintiff,  the  action  is  maintainable  in 
its  present  form  by  virtue  of  the  statute  11  G.  2,  c.  19,  §  14.  In  most 
of  the  cases  referred  to  on  the  argument  the  tenancy  was  from  year  to 
year.  It  is  obvious  that  the  assignee  of  the  reversion  has  then  the 
power  of  determining  the  tenancy  by  notice ;  and,  if  he  refrains  from 
so  doing,  the  occupation  may  well  be  said  to  be  by  .his  permission. 
*  *  *  No  case  appears  yet  to  have  been  determined,  where,  an 
absolute  lease  in  writing,  not  under  seal,  for  a  fixed  term  of  years, 
having  been  granted,  and  the  landlord  having  assigned  his  reversion,  it 
has  been  held  that  the  assignee  can  maintain  an  action  of  assumpsit  for 
use  and  occupation.  We  are  however  of  opinion,  for  the  reasons  al- 
ready given,  that  he  can;  and  we  think  that  the  direction  of  the 
learned  Judge  on  this  part  of  the  case  was  wrong,  though  right  as  to 
the  question  of  repair. 

The  rule  must  be  absolute  for  a  new  trial.    Rule  absolute.^'^ 

5TA.  by  parol  leased  premises  to  X.  as  tenant  from  year  to  year.  X.  later 
asslgaied  his  lease  to  Y.,  but  A.  refused  to  deal  with  Y.  as  his  tenant,  al- 
though he  continued  in  occupation.  A.  subsequently  conveyed  to  B.  all  his 
estate  in  the  demised  premises.  No  rent  was  paid  to  either  A.  or  B.  after 
the  assignment  and  B.  brought  action  against  X.  for  the  rent  in  arrear  since 
the  conveyance  from  A.  to  B.  Held,  the  action  does  not  lie.  AUcock  v. 
Moorhouse,  L.  R.  9  Q.  B.  D.  366   (18S2). 


416  EIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

BICKFORD  V.  PARSON. 
^       (Court  of  Common  Pleas,  1S4S.     5  C.  B.  920.) 

Assumpsit.  The  first  count  of  the  declaration  stated,  that,  before  the 
commencement  of  the  suit,  to  wit,  on  the  25th  of  June,  1825,  in  con- 
sideration that  the  defendants,  at  their  request,  had  become  and  then 
were  tenants  to  the  plaintiff  of  a  certain  dwelling-house  and  premises, 
with  the  appurtenances,  of  the  plaintiff,  upon  and  subject  to  certain 
terms,  (amongst  others)  to  wit,  the  terms  that  the  defendants  should, 
during  their  said  tenancy,  keep  all  repairs  thereon,  the  defendants  then 
promised  the  plaintiff  to  use  the  said  dwelling-house  and  premises  in 
a  tenant-like  and  proper  manner  during  their  said  tenancy  thereof,  and 
also,  during  their  said  tfenancy  of  the  same,  to  keep  all  repairs  thereon, 
according  to  the  terms  aforesaid;  and  that  the  said  tenancy  of  the 
defendants  of  the  said  dwelling-house  and  premises,  upon  the  terms 
aforesaid,  continued  for  a  long  space  of  time,  to  wit,  from  the  day  and 
year  aforesaid,  hitherto;  yet  that  the- defendants,  not  regarding  their 
said  promises,  did  not  nor  would,  during  their  said  tenancy,  use  the 
said  dwelHng-house  and  premises  in  a  tenant-like  or  proper  manner,  or 
keep  such  repairs  thereon  as  aforesaid ;  but  that,  on  the  contrary  there- 
of, the  defendants,  during  all  the  time  of  their  said  tenancy,  used  the 
said  dwelling-house  and  premises  in  an  untenant-like  and  improper 
manner,  and  also,  during  all  that  time,  wholly  neglected  to  keep  such 
repairs  thereon  as  aforesaid,  insomuch  that,  by  reason  of  such  default, 
&c.,  of  the  defendants,  the  said  dwelling-house  and  premises,  while  the 
defendants  so  continued  tenants  thereof  as  aforesaid,  upon  the  terms 
in  that  behalf  aforesaid,  were  and  continued  out  of  repair. 

There  was  a  further  breach  assigned, — that  the  defendants,  during 
their  said  tenancy,  wrongfully  pulled  down  and  carried  away  certain 
fixtures,  parcel  of  the  said  dwelling-house. 

The  sixth  plea  stated,  that,  after  the  defendants  had  become  tenants 
to  the  plaintiff,  as  in  the  said  count  alleged,  and  before  the  committing 
of  the  breaches  in  that  count  mentioned,  or  the  accrual  of  the  said  caus- 
es of  action  in  respect  thereof,  to  wit,  on  the  1st  of  December,  1842,  the 
plaintiff,  by  due  course  of  law,  conveyed,  assigned,  granted,  and  as- 
sured all  his  estate,  right,  title,  and  interest  of  and  in  the  said  demised 
premises,  and  of  and  in  the  reversion  expectant  upon  the  determina- 
tion of  the  defendant's  said  tenancy,  to  a  certain  other  person,  to  wit, 
one  William  Bickford;  that  the  plaintiff  thenceforward,  and  before 
the  accrual  of  the  causes  of  action  in  the  said  first  count  mentioned, 
ceased  to  have  anything  in  the  said  demised  premises  and  tenements; 
and  that  the  defendants  then  ceased  to  be,  and  never  since  had  been, 
tenants  thereof  to  the  plaintifif, — verification. 

To  this  plea,  the  plaintiff  demurred  specially,  assigning  for  causes, 
amongst  others,  that  the  promise  of  the  defendants  declared  on,  was 
according  to  its  legal  effect,  a  promise  to  keep  in  repair  during  the  con- 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  417 

tinuance  of  the  tenancy  under  the  plaintiff  and  his  assigns,  and  not  un- 
der the  plaintiff  alone,  and  that  the  assighrnent  and  cessation  of  the 
tenancy  under  the  plaintiff,  as  alleged  in  the  plea,  was  no  answer  to  the 
causes  of  action  to  which  the  plea  was  pleaded ;  and  that  the  plea  was 
an  argumentative  and  informal  traverse,  either  of  the  breaches,  or  else 
of  tlie  continuance  or  subsistence  of  the  said  tenancy  at  the  time  of 
the  committing  of  the  said  breaches ;  and  that  the  said  traverse  should 
have  been  in  the  ordinary  form  of  a  traverse,  and  ha\»e  concluded  to 
the  country. 

Joinder  in  demurrer. 

Wilde,  C.  J.°®  It  seems  to  me  that  this  plea  is  bad  in  substance; 
and  therefore  that  it  is  not  necessary  to  advert  to  the  special  causes  of 
demurrer.  The  question  turns  upon  the  meaning  of  the  allegation  in 
the  declaration  as  to  the  tenancy  of  the  defendants, — whether  it  im- 
ports a  tenancy  only  between  the  plaintiff  and  the  defendants,  or  a  ten- 
ancy of  the  premises,  which,  although  originally  created  between  the 
plaintiff  and  the  defendants,  was  not  limited  to  the  period  of  the  plain- 
tiff's possession.  It  seems  to  me  that  the  declaration  does  not  limit  the 
defendants'  promise  to  their  tenancy  under  the  plaintiff,  but  points  to  a 
tenancy  for  a  term ;  and  the  plea  treats  the  declaration  as  importing  a 
tenancy  to  that  effect.  The  declaration  states,  that,  in  consideration  that 
the  defendants  had  become,  and  were,  tenants  to  the  plaintiff,  upon  and 
subject  to  certain  terms  (amongst  others),  to  wit,  the  terms  that  the 
defendants  should,  during  the  said  tenancy,  keep  all  repairs  thereon, 
the  defendants  promised  the  plaintiff  to  use  the  premises  in  a  tenant- 
like and  proper  manner  during  their  said  tenancy  thereof,  and  also,  dur- 
ing their  said  tenancy  of  the  same,  to  keep  all  repairs  thereon,  Accord- 
ing to  the  terms  aforesaid ;  and  that  the  said  tenancy  of  the  defend- 
ants of  the  premises,  upon  the  terms  aforesaid,  continued  for  a  long 
space  of  time,  to  wit,  hitherto.  There  is,  therefore,  a  distinct  aver- 
ment of  a  continuance  of  the  tenancy  down  to  the  commencement  of 
the  action.  And  the  breach  is,  that  the  defendants,  whilst  they  con- 
tinued tenants  thereof  as  aforesaid,  used  the  premises  in  an  untenant- 
like  manner,  and  suffered  them  to  be  out  of  repair.  The  question  then 
is,  whether,  upon  the  face  of  the  declaration,  the  plaintiff  complains 
of  a  breach  of  the  contract  during  the  tenancy  generally,  or  whether 
the  declaration  imports  that  the  contract  was  to  continue  only  so  long 
as  the  plaintiff  himself  should  remain  the  landlord.  Taking  the  whole 
declaration  together,  it  appears  to  me  that  it  imports  a  tenancy  gen- 
erally between  these  parties.  It  is  true,  that,  at  the  time  of  the  con- 
tract, the  defendants  became  tenants  to  the  plaintiff.  But  there  is  noth- 
ing in  the  language  of  the  declaration  to  limit  it  to  the  continuance  of 
the  plaintiff's  interest.     Applying  one's  general  knowledge  to  the  sub- 

c  8  Part  of  the  opinion  of  Wilde,  J.,  and  the  opinions  of  Maule,  Coltman. 
and  Cresswell,  JJ..  are  omitted. 

Big. Rights — 27 


418  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

• 

ject-matter,  and  looking  at  the  nature  of  the  property,  it  is'  not  to  be 
inferred  that  a  mere  tenancy  at  will  was  intended,  without  words  plain- 
ly showing  that  such  was  the  contract  between  the  parties.  The  plea 
commences  by  stating,  that,  after  the  defendants  had  become  tenants 
to  the  plaintiff,  as  in  the  count  alleged, — confessing  the  tenancy  so  al- 
leged,— and  before  the  committing  of  the  breaches,  or  the  aj:crual  of 
the  causes  of  action  in  respect  thereof,  the  plaintiff  conveyed,  assigned, 
&c.,  all  his  estate  and  interest  in  the  premises,  and  in  the  reversion  ex- 
pectant upon  the  determination  of  the  said  tenancy,  to  one  William 
Bickford;  that  the  plaintiff  thenceforward  ceased  to  have  anything  in 
the  premises;  and  that  the  defendants  then  ceased  to  be,  and  never 
since  had  been,  tenants  thereof  to  the  plaintiff.  The  plea  treats  the  ten- 
ancy mentioned  in  the  declaration,  as  a  tenancy  in  respect  of  which 
there  existed  a  reversion  which  was  by  the  assignment  conveyed  to  the 
peison  mentioned.  If,  therefore,  the  contract  in  the  declaration  was 
not  limited  to  a  tenancy  under  the  plaintiff,  but  was  to  enure  so  long 
as  the  defendants  continued  tenants  to  whosoever  might  become  pos- 
sessed of  the  reversion,  the  only  question  is,  whether,  after  the  plain- 
tiff had  ceased  to  have  anything  to  do  with  the  premises,^nasmuch  as 
this  was  a  conveyance  upon  which  the  statute  of  32  H.  8,  c.  34,  did  not 
operate, — the  right  to  maintain  an  action  in  respect  of  a  breach  of  a 
contract,  did  not  remain  in  the  plaintiff.  It  appears  to  me  that  there  is 
no  reason,  in  point  of  law,  why,  if  the  right  to  sue  for  a  breach  did 
not  pass  with  the  reversion,  it  should  not  remain  in  the  plaintiff.  The 
privity  of  estate  was  destroyed  by  the  conveyance  of  the  reversion ;  but 
the  privity  of  contract  was  not.  That,  it  is  plain,  would  not  have  passed 
with  the  reversion  before  the  statute ;  and  the  statute  has  no  operation 
where  the  conveyance  is  not  by  deed.     *     *     * 

If,  therefore,  the  privity  ol  contract  subsists  for  ever  between  the 
lessor  and  the  lessee,  assuming  all  that  is 'alleged  in  the  plea  to  be  true, 
I  see  no  reason  why  the  plaintiff  should  not  maintain  this  action.  For 
these  reasons,  I  think  the  plaintiff  is  entitled  to  judgment. 

Judgment  for  the  plaintiff.^* 


COBB  V.  JOHNSON. 

(Supreme  Court  of  Georgia,  1906.     126  Ga.  618,  55  S.  E.  935.) 

Error  from  City  Court  of  Wrightsville ;  Wm.  Faircloth,  Judge. 
Action  by  W.  F.  Johnson  against  A.  T.  Cobb.  Trover.  *  *  * 
Johnson  rented  a  place  to  Dudley  for  five  years.  The  contract,  which 
was  in  writing,  stipulated  that  he  should  receive  as  rent  one-fourth  of 
all  the  corn,  cotton,  and  fodder  raised ;  and  at  the  expiration  of  five 
years,  or  when  the  said  J.  D.  Dudley  shall  leave  the  place,  he  is  to  leave 
the  seed  out  of  16  bales  of  cotton  on  the  place."     Johnson  sold  the 

68  See  Bridgham  v.  Tileston,  5  Allen  (Mass.)  371   (1862). 


Ch.  4)  LEGAL    ENFOKCEMENT   OF   COVENANTS  419 

plantation  in  December,  1903,  to  Cobb,  the  present  defendant,  and  made 
him  a  warranty  deed  thereto.  He  also  indorsed  on  the  contract  of 
rent  with  Dudley,  and  signed  the  following:  "W.  T.  Johnson  having 
sold  said  land  to  A.  T.  Cobb,  I  hereby  transfer  the  within  contract  to 
him.  Dec.  11,  1903."  Johnson  testified  that  in  the  fall  of  1904,  Dud- 
ley said  that  he  was  thinking  of  leaving  the  place,  and  would  deliver 
the  seed,  though  the  contract  of  rental  would  not  expire  by  its  terms 
till  1908 ;  that  Dudley  told  him  to  come  to  the  place  and  get  the  seed, 
which  were  there  in  the  seedhouse,  and  said  he  (Dudley)  would  deliver 
them,  if  Johnson  would  go  for  them.  When  plaintiff  went  for  them, 
however,  they  were  locked  up,  and  the  defendant  declined  to  let  him 
have  them.  He  brought  an  action  of  trover  to  recover  them.  After  a 
verdict  in  his  favor,  defendant  moved  for  a  new  trial.     *     *     * 

Lumpkin,  J.®"  (after  stating  the  facts).  1.  When  the  landlord  sold 
and  conveyed  the  plantation,  and  transferred  to  the  purchaser  the  con- 
tract of  lease  or  rent,  without  reservation,  this  included  all  of  his  rights 
under  the  contract,  one  of  which  was  the  right  to  have  the  seed  from 
16  bales  of  cotton  left  on  the  place  at  the  expiration  of  the  lease,  or 
the  removal  of  the  tenant.  As  a  part  of  the  contract,  the  right  to  en- 
force this  agreement  passed  to  the  purchaser  under  the  assignment  of 
the  whole.  Nothing  was  left  the  plaintiff  to  enforce ;  and  no  right  to 
recover  in  trover  existed  in  him.     *     *     * 

Judgment  reversed.®^ 

«o  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 

61  See  Manchester  Brewery  Co.  v.  Coombs,  [19.01]  2  Ch.  608,  619;  isman 
V.  Hanscom,  217  Pa.  133,  66  Atl.  329    (1907). 

A.  leased  land  to  X.,  and  covenanted  to  pay  for  any  improvements  that 
X.  might  put  on  the  premises ;  the  vs'ord  "assigns"  was  not  used.  X.  con- 
veyed his  interest  to  Y.,  and  Y.  to  Z.  A.,  at  the  expiration  of  the  lease,  re- 
fused to  pay  for  the  improvements.  In  an  action  by  Z.  in  the  name  of  X. 
against  A.,  the  court  said:  "It  is  clear  that  all  the  interest  of  Thompson 
in  the  leased  premises,  not  only  his  right  to  the  unexpired  term,  but  also  fo 
compensation  for  the  improvements,  passed  by  his  assignment  to  Richard 
Ilarcourt.  The  assignment  contains  a  special  provision  upon  this  point,  and 
also  a  covenant  that  Thompson,  the  assignor,  will  consult  Harcourt  in  the 
selection  of  the  individual,  to  be  named  by  him,  according  to  the  provisions 
of  the  lease,  to  ascertain  the  value  of  tliose  improvements.  It  is  equally 
clear  that;  all  the  interest  which  Richard  Harcourt  thus  acquired  in  the  de- 
mised premises,  and  the  iraprovemeitts  thereon,  passed  by  his  assignment 
to  Benjamin  Ilarcourt,  for  whose  benefit  this  action  is  brought  Tbe  terms 
in  which  the  subject  or  interest  intended  tp  be  assigned  is  described  are: 
'All  the  riglit,  title,  interest,  claim  and  demand,  both  in  law  and  equity,  and 
as  well  in  possession  as  in  expectancy,  of  the  said  party  of  the  first  part, 
of,  in  and  to  all  that  certain  house  and  lot  or  piece  of  land,  situate,  &c., 
with  all  and  singular  the  hereditaments  and  appurtenances  thereunto  be- 
longing, or  in  any  wise  appertaining.'  The  improvements  or  buildings  for 
which  compensation  was  souglit  by  this  action  under  the  covenant  in  the 
lease,  were  the  dwelling  house,  shed  and  blacksmith  shop,  which  had  been 
erected  by  Thompson.  Now  all  the  assignor's  interest  in  the  house,  not 
only  present,  but  expectancy,  is  expressly  assigned,  and  his  interest  in  the 
other  buildings  passed,  because  they  were  appurtenant  and  belonged  to  the 
house  and  lot."     Thompson  v.  Rose,  8  Cow.   (N.  Y.)  266,  268  (1828). 

Upon  a  similar  state  of  facts  it  appeared  that  at  the  termination  of  the 
lease  A.  paid  X.  the  value  of  the  improvements  in  ignorance  of  the  fact  that 


420  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

ALLEN  et  al.  v.  CULVER. 
(Supreme  Court  of  New  York,  1846.     3  Denio,  284.) 

Motion  to  set  aside  the  report  of  referees,  and  also  in  arrest  of  judg- 
ment. The  action  was  covenant  for  the  non-payment  of  rent  and  for 
the  breach  of  covenants  in  the  lease,  brought  by  the  grantees  of  the 
reversion  against  the  defendant,  w^ho,  by  a  separate  instrument,  became 
surety  for  the  lessee.  The  declaration  set  out  a  lease  dated  February 
17th,  1837,  from  Arthur  Hirst  and  Ann  his  wife  to  William  H,  Culver, 
for  certain  premises  described  therein,  situated  in  Brooklyn,  with  the 
buildings  and  fixtures  thereon,  known  as  the  Nassau  Whiting  Factory, 
for  the  term  of  five  years  and  one  month  from  the  first  day  of  April 
ensuing,  and  ending  May  1st,  1842,  at  an  annual  rent  of  $2751,  pay- 
able quarterly.  The  lessee  covenanted  to  pay  the  rent,  and  that  "on 
the  last  day  of  the  said  term  or  other  sooner  determination  of  the  es- 
tate hereby  granted  the  said  party  of  the  second  part,  his  executors,  ad- 
ministrators or  assigns,  shall  and  will  peaceably  and  quietly  leave,  sur- 
render and  yield  up  unto  the  said  parties  of  the  first  part,  their  heirs 
or  assigns,  all  and  singular  the  said  demised  premises  in  as  good  order 
and  condition  as  the  same  are  now  in,  ordinary  wear  and  tear  and  dam- 
age by  the  elements  excepted." 

The  parties  also  covenanted  that  there  should  be  an  inventory  taken 
of  the  tools  about  the  premises,  and  of  certain  chalk  stones  at  the 
factory,  which  were  used  in  the  business  of  manufacturing  whiting, 
which,  it  was  agreed,  should  be  "considered  as  part  of  the  premises 
hereby  demised  and  to  pass  therewith,  and  that  the  same  are  to  remain 
in  the  possession  of  the  said  party  of  the  second  part,  his  executors,  ad- 
ministrators and  assigns,  during  the  term  hereby  demised ;  and  upon 
the  expiration  of  the  term  of  years  hereby  granted,  the  same  to  be  and 
remain  on  the  said  demised  premises,  or  replaced  with  others,  or  the 
same  are  to  be  paid  for  by  the  said  party  of  the  second  part,  his  ex- 
ecutors, administrators  and  assigns."  The  lease  also  contained  the 
following  clause,  inserted  after  the  covenant  before  mentioned :  "And 
it  is  further  mutually  covenanted,  promised  and  agreed,  that  in  case  of 
damage  by  fire  to  said  buildings  rendering  the  same  or  either  of  them 
untenantable,  the  same  shall  be  repaired  by  the  said  parties  of  the  first 
part;  and  while  the  same  shall  so  remain  untenantable  by  reason  of 
such  fire,  the  rent  shall  cease  for  such  part  of  the  buildings  as  shall 
be  so  injured." 

X.  bad  previously  assigned  the  lease.  In  a  subsequent  action  by  a.  s  assignee 
against  A.  for  the  value  of  the  improvements,  held,  A,  is  not  liable.  Cronin 
V.  Watkins,  1  Tenn.  Ch.  119   (1873). 

"As  a  bill  of  exchange  or  other  negotiable  paper  in  the  hands  of  an  as- 
signee is  free  from  the  equities  to  which  it  was  liable  before  assignment,  so 
covenants  running  with  land,  when  in  the  hands  of  a  grantee  of  the  lacd, 
are  free  from  the  equities  which  may  have  existed  against  the  original  cove- 
nantor [covenantee]."  Green,  P.,  in  Lydick  v.  Baltimore  &  O.  R.  R.  Co.,  17  W. 
V&.  427,  443  (1880). 


Ch.  4)  LEGAL    ENFORCEMENT    OF   COVENANTS  421 

There  was  an  inventory  of  the  tools  and  chalk  stones  at  the  foot  of 
the  lease  with  the  respective  values  annexed ;  the  tools  being  valued 
at  $69,  and  the,  chalk  stones  at  $3000. 

The  defendant's  covenant  was  on  the  back  of  the  lease ;  it  bore  the 
same  date,  and  recited  that  the  lease  was  executed  by  the  lessors  at 
the  request  of  the  defendant;  in  consideration  of  which  and  of  one 
dollar,  the  defendant  covenanted  to  "become  surety  for  the  punctual 
payment  of  the  rent  within  reserved  and  faithful  performance  of  the 
covenants  within  contained;  and  in  case  of  default  being  made  by 
the  said  William  H.  Culver,  I  promise  and  agree  to  and  with  the  said 
Arthur  Hirst,  his  heirs  and  assigns,  owners  of  said  demised  premises 
within  contained,  to  pay  such  sum  or  sums  of  money  as  will  be  suffi- 
cient to  make  up  such  deficiency  in  payment  of  rent,  or  default  in 
performance  of  covenants,  without  requiring  any  notice  of  non-pay- 
ment, or  proof  of  demand  being  made." 

After  setting  out  the  lease  and  covenant,  the  declaration  stated  that 
the  lessors  Hirst  and  wife  afterwards,  to  wit,  on  the  first  day  of  June, 
1837,  being  seized  of  the  reversion,  granted  and  conveyed  the  same, 
"subject  to  and  with  the  benefit  of  .the  lease,",  to  the  plaintiffs  in  fee. 
Breaches  were  assigned  in  the  several  counts  of  the  declaration — 1st, 
for  the  non-payment  of  the  rent  for  the  whole  term ;  2d,  for  not  yield- 
ing up  the  premises  at  the  end  of  the  term  in  the  condition  required 
by  the  lease,  but,  on  the  contrary,  having  damaged  and  injured  the 
fixtures ;  and  "certain  goods  and  chattels  of  the  plaintiffs  then  being 
in  and  upon  and  a  part  of  the  said  demised  premises,"  being  carried 
away  and  wholly  lost  to  the  said  plaintiffs ;  and  also  that  the  tools  and 
chalk  stones  did  not  remain  on  the  premises,  and  have  not  been  re- 
placed or  paid  for  as  provided  in  the  lease.    *     *     * 

Jewett,  J.^^  *  *  *  Unless  the  covenant,  in  relation  to  the  tools 
and  chalk  stones,  is  one  which  runs  with  the  estate  in  the  land,  the  ac- 
tion for  the  breach  of  il  cannot  be  sustained  in  the  name  of  the  plain- 
tiffs, but  must  be  brought  by  the  lessors  in  whom  the  legal  interest  in 
the  contract  is  vested.  (I  Chitty's  PI.  11,  12,  ed.  1812;  Willard  v. 
Tillman,  2  Hill,  274.)    *"  *    * 

Although  the  parties  agreed  that  the  tools  and  chalkstones  mentioned 
in  the  covenant,  should  be  considered  as  part  of  the  premises  demised, 
and  should  pass  therewith,  they  are  nevertheless  mere  personal  chat- 
tels, out  of  which  the  rent  could  not  issue.  It  is  true,  that  the  yearly 
value  of  the  demised  premises  may  have  been  increased  by  the  letting 
of  these  articles  of  personal  property;  still  the  rent  reserv-ed  c6ntin- 
ues  to  issue  out  of  the  land  alone.  In  Spencer's  case,  (5  Co.  17,)  it  is 
resolved,  that  "if  a  man  lease  sheep,  or  other  stock  of  cattle,  or  any 
other  personal  goods,  for  any  time,  and  the  lessee  covenants  for  him 
and  his  assigns  at  the  end  of  the  time  to  deliver  the  like  catt/e  or  goods, 
as  good  as  the  things  letten  were,  or  such  price  for  them,  and  the  lessee 

•2  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitttd. 


422  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

assigns  the  sheep  over,  this  covenant  shall  not  bind  the  assignee ;  for 
it  is  but  a  personal  contract;"  and  it  is  added, — "The  same  law,  if  a 
man  demises  a  house  and  land  for  years,  with  a  stock  or  sum  of  mon- 
ey, rendering  rent,  and  the  lessee  covenants  for  him,  his  executors,  ad- 
ministrators and  assigns,  to  deliver  the  stock  or  sum  of  money  at  the 
end  of  the  term,  yet  the  assignee  shall  not  be  charged  with  this  cove- 
nant, for  although  the  rent  reserved  was  increased  in  respect  of  the 
stock  or  sum,  yet  the  rent  did  not  issue  out  of  the  stock  or  sum,  but 
out  of  the  land  only,  and  therefore,  as  to  the  stock  or  sum,  the  covenant 
is  personal  and  shall  bind  the  covenantor,  his  executors  and  adminis- 
trators who  represent  him,  and  not  the  assignee — and  because  it  is  not 
certain  that  the  stock  or  sum  will  come  to  the  hands  of  the  assignee, 
for  it  may  be  wasted,  or  otherwise  consumed  or  perished,  through  the 
lessee;  and  therefore  the  law  cannot  determine,  at  the  time  of  making 
the  lease,  that  such  covenant  shall  bind  the  assignee."  See  also  New- 
man V,  Anderton,  (2  New  Rep.  226.)     *     *     *  es 

The  statute  (1  R.  S.  747,  §§  23,  24,)  does  not  make  every  covenant 
which  may  find  a  place  in  a  lease  assignable.  The  twenty-third  section 
in  terms  provides  that  the  grantees  of  any  demised  lands,  tenements, 
rents,  or  other  hereditaments,  or  of  the  reversion  thereof,  the  assignees 
of  the  lessor  of  any  demise,  and  the  heirs  and  personal  representatives 
of  the  lessor,  grantee  or  assignee,  shall  have  the  same  remedies  by  entry, 
action,  distress  or  otherwise  for  the  non-performance  of  any  agree- 
ment contained  in  the  lease  so  assigned,  or  for  the  recovery  of  any 
rent,  or  for  the  doing  of  any  waste  or  other  cause  of  forfeiture,  as  their 
grantor  or  lessor  had  or  might  have  had  if  such  reversion  had  remain- 
ed in  such  lessor  or  grantor.  This  statute  is  but  a  reenactment  of  32 
Hen.  8,  ch.  34.     Spencer's  case  shows  that  the  English  statute  was 

63  See  Smith  v.  Kellogg,  46  Vt.  560  (1S71). 

"The  provision  regarding  the  hay  was,  in  substance,  that  the  lessee  should 
leave  as  much  on  the  farm  as  Avas  there  when  he  took  possession.  The  de- 
fendant left  the  required  amount  of  hay  but  some  of  it  was  not  cut  in  prop- 
er season,  and  by  reason  of  tliis  was  of  loss  value  than  it  otherwise  would 
have  been.  It  is  claimed  that  the  plaintift  as  successor  in  interest  to  the 
lessor,  was  entitled  to  the  required  amount  of  hay  properly  and  seasonably 
harvested  according  to  the  rules  of  good  husbandry.  This  may  be  so ;  but 
the  question  hece  is^whether  he  can  recover  the  damage  in  an  action  of  cov- 
enant brought  in  his  own  name.  The  diminished  value  of  the  hay  is  the  only 
matter  now  in  question.  The  injury  to  the  soil  is  covered  by  another  item. 
We  think  the  defendant's  obligation  concerning  the  hay  is  not  one  that 
touches*  or  concerns  the  land.  It  is  true  that  the  hay  to  be  returned  was 
potentially  in  the  land,  and  that  its  quality  and  condition  might  depend 
somewhat  on  the  cliaracter  of  the  defendant's  husbandry.  But  in  its  rela- 
tion to  the  defendant's  obligation  it  was  nothing  more  than  a  personal  chat- 
tel. The  return  of  the  hay  was  not  the  payment  of  rent  in  kind.  It  was  to 
be  returned  to  replace  like  property  which  was  delivered  to  the  defendant 
to  be  consumed  in  its  use.  The  agreement  to  return  it  was  a  mere  personal 
obligation.  See  Tiffany  L.  &  T.  894;  Smith  v.  Kellogg,  46  Vt.  560  11874] ; 
Allen  V.  Culver,  3  Denio  (X.  Y.)  284  [1846] ;  Williams  v.  Earle,  L.  R.  3  Q.  B. 
739  [1868]."  Magoon  v.  Eastman,  86  Vt.  261,  265,  84  Atl.  869  (1912).  See. 
also,  Lvbbe  v.  Hart,  L.  R.  29  Ch.  D.  8  (18S3) ;  Chapman  v.  Smith,  [1907]  2 
Ch.  97 ;  Verplanck  v.  Wright,  23  Wend.  (N.  Y.)  506  (1840). 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  423 

confined  to  covenants  touching  or  concerning  the  thing  demised,  and 
did  not  extend  to  collateral  covenants.  The  construction  contended  for 
here  would  make  all  covenants  negotiable,  or  which  is  the  same  thing, 
assignable,  if  the  parties  would  but  insert  them  in  any  indenture  of  de- 
mise, which  would  confound  all  distinction  between  covenants  real 
and  personal.  I  think  the  statute,  does  no  more  than  to  transfer  the 
privity  of  contract  of  a  covenant  real,  betw^een  the  lessor  and  lessee, 
and  does  not  afifect  a  strictly  personal  covenant,  although  it  be  contain- 
ed in  a  lease.  (Norman  v.  Wells,  17  Wend.  136;  Willard  v.  Tillman, 
2  Hill,  274.)    *    *    * 

It  is  insisted  that  the  defendant's  covenant  to  guaranty  the  payment 
of  the  rent,  was  not  assignable,  so  as  to  enable  the  plaintiffs  to  sue  in 
their  own  names  for  a  breach  of  that  covenant.  It  is  not  necessary 
that  the  defendant  should  have  taken  an  interest  in  the  land.  In  the 
case  cited  from  the  Year  Book  42  Edw.  3,  the  prior  and  his  succes- 
sors took  no  estate  in  the  land,  yet  it  was  held,  that  the  covenant  to 
sing  in  the  chapel  went  with  the  land.  When  the  thing  to  be  done,  or 
omitted,  concerns  the  lands  or  estate,  that  is  the  medium  which  cre- 
ates the  privity  between  the  plaintiff  and  defendant.  I  think  the  de- 
fendant's covenant  respecting  the  rent  run  with  the  land,  and  that 
therefore  the  plaintiffs  as  grantees  of  the  reversion  could  maintain  this 
action  for  a  breach  of  that  covenant.®*  (Norman  v.  Wells,  17  Wend. 
136,  149.)    The  report  must  be  set  aside. 

Motion  granted. 

84  Contra:     Harbeck  v.  Sylvester,  13  Wend.  (N.  Y.)  60S  (1S35). 

X.,  a  tenant  in  possession,  executed  to  A.,  his  irsndlord,  a  bond  conditioned 
on  leaving  on  the  premises  in  good  condition  at  the  termination  of  the  lease, 
certain  specified  fixtures ;  subsequently  A.'s  reversionary  interest  in  tlie 
premises  was  sold  to  B.  At  the  termination  of  the  lease.  X.  failed  to  sur- 
render the  premises  and  fixtures  in  good  condition.  A.  brought  action  against 
X.  on  the  bond.  The  court  held  that  the  action  could  not  be  maintained,  say- 
ing: "At  the  time  designated  for  performing  the  conditions,  the  estate  had 
passed  to  Ralston  and  Burke  under  the  sheriff's  deed,  and  therefore  there 
was  then  no  right  of  action  in  defendant  in  error.  It  is  well  settled  That 
covenants  real  pass  with  the  land  to  which  they  are  annexed,  to  a  pur- 
chaser at  a  sale  under  execution.  Rawle  on  Covenants  for  Title,  352.  I 
have  not  found  any  case  in  which  the  rule  has  been  applied  to  a  covenant 
which  attached  to  the  land  after  the  sale,  and  -before  conveyance  by  the 
sheriff,  as  in  this  ca.se.  But  it  is  believed  that  the  principle  is  applicable 
to  such  covenants,  and  to  whatever  estate  is  acquired  by  the  judgment 
debtor  prior  to  the  conveyance  by  the  sheriff.  Any  other  rule  would  di- 
vorce the  covonant  from  the  land  for  the  benefit  of  which  it  was  intended, 
and  practically  annul  its  obligation.  The  judgment  debtor,  not  having  the 
estate  in  the  land,  can  suffer  no  injury  from  the  breach,  and  if  the  grantee 
in  the  sheriff's  deed  cannot  sustain  an  action  upon  the  covenant,  it  would 
appear  that  no  one  would  have  such  right.  It  is  very  certain  that  the  judg- 
ment debtor  is  divested  of  the  right  of  action;  and  if  it  is  not  extinguished, 
it  must  pass  to  the  assignee  of  the  land."  Hayes  v.  New  York  Gold  Min. 
Co.  of  Colorado,  2  Colo.  273,  280  (1874). 


424  RIGHTS   IN   THE    LAND   OF   ANOTHER  (Part  2 


WALSH  et  al.  v.  PACKARD. 

(Supreme  Judicial  Court  of  Massachusetts,  1896.     165  Mass.  189,  42  N,  E. 
577,  40  Li.  R.  A.  321,  52  Am.   St.   Rep.  508.) 

Holmes,  J.  This  is  an  action  upon  a  covenant  appended  to  a  lease, 
brought  by  the  administrators  of  Walsh,  the  lessor  and  covenantee. 
The  only  objection  urged  to  the  plaintiffs'  recovery  is  that,  if  the  ob- 
ligation of  the  covenant  did  not  cease  with  the  life  of  Walsh,  his  heirs, 
and  not  his  administrators,  were  the  proper  persons  to  sue  upon  it.  The 
covenant  is  as  follows : 

•  'Tn  consideration  of  the  letting  of  the  above-described  premises  and 
one  dollar  to  me  paid,  the  receipt  of  which  is  hereby  acknowledged, 
I  do  hereby  become  surety  for  the  prompt  and  full  payment  of  the 
rent  and  performance  of  the  covenants  as  specified  in  the  above  lease 
to  be  paid  by  Ida  E.  Small  to  John  Walsh.  Witness  my  hand  and 
seal,  the  twenty-eighth  day  of  November,  A.  D.  1892. 

"Wm.  A.  Packard [Seal.]" 

The  contract  raises  a  question  of  construction  as  well  as  a  question 
of  law  when  the  construction  is  settled.  It  does  not  mention  heirs, 
executors,  administrators,  or  assigns,  and  courts  are  a  little  slower  to 
enlarge  by  implication  the  undertaking  of  a  surety  or  guarantor  than 
they  are  to  enlarge  that  of  the  principal  party.  But  perhaps  the  word 
"surety,"  although  seemingly  inartificially  used,  coupled  with  the  na- 
ture and  object  of  the  contract,  makes  the  collateral '  undertaking  as 
large  as  the  principal  one.  We  will  assume  that  it  is  to  be  read  in  the 
broader  sense.  We  have  no  doubt  that  it  continues  to  run  after  the 
death  of  the  original  covenantee.  But,  supposing  heirs,  executors,  and 
assigns  to  have  been  mentioned,  it  seems  to  be  settled  in  this  com- 
monwealth that  the  instrument  would  not  work  like  a  letter  of  credit 
offering  a  new  contract  to  the  successors  of  Walsh  (Saunders  v.  Saun- 
ders, 154  Mass.  337,  338,  28  N.  E.  270;  Abbott  v.  Hills,  158  Mass. 
396,  33  N.  E.  592),  if  that  would  make  any  difference  when  there 
has  been  no  purchase  on  the  faith  of  it ;  and  therefore,  apart  from 
other  reasons,  the  only  ground  on  which  the  heirs  can  be  preferred 
to  the  administrators  as  the. proper  plaintiffs  is  that  the  covenant  runs 
with  the  land,  or,  more  accurately,  runs  with  the  estate  of  the  coven- 
antee, and  that  the  heirs  are  successors  to  tliat  estate.  The  covenant 
is  collateral  to  the  lease  (Virden  v.  Ellsworth,  15  Ind.  144),  and  is 
not  affected  by  St.  32  Hen.  VIII.  c.  34;  Harbeck  v.  Sylvester,  13 
Wend.  608.  See  Jones  v.  Parker,  163  Mass.  564,  568,  40  N.  E.  1044, 
47  Am.  St.  Rep.  485. 

In  Allen  v.  Culver,  3  Denio  (N.  Y.)  284,  301,  a  similar  covenant  was 
held  by  the  supreme  court  of  New  York  to  pass  to  assigns,  but  the 
point  was  decided  without  discussion  on  the  supposed  analogy  of  Pak- 
enham's  Case  (a  covenant  on  the  part  of  a  convent  that  the  convent 
should  sing  every  week  in  a  chapel  in  the  plaintiff's  manor),  Y.  B.  42 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  425 

Edw.  III.  p.  3,  pi.  14.  The  reference  to  this  case  showed  that  the 
court  did  not  have  in  mind  the  distinction  pointed  out  by  Lord  Coke 
(1  Coke,  120a,  122b),  and  discussed  in  Norcross  v.  James,  140  Mass. 
188,  2  N.  E.  946,  between  those  covenants  which  create,  or  follow  the 
analogy  of,  easements,  and  go  with  the  land  even  to  disseisors,  and 
those  pure  contracts,  like  covenants  for  title,  upon  which  no  one  can 
sue  except  parties  and  privies.  Pakenham's  Case  was  of  the  former 
class.  The  argument  for  the  plaintiff  in  that  case  of  most  weight  in  the 
mind  of  the  court  was  that  the  plaintiff  was  tenant  of  the  land,  and 
that  the  service  claimed  was  a  thing  annexed  to  the  land,  being  of  a 
kind  that  could  be  created  by  prescription,  or,  as  it  was  stated  by 
Fitzherbert,  every  one  wlio  has  the  land  shall  have  the  covenant.  Fitzh. 
Abr.  "Covenant,"  pi,  17.  Those  who  are  curious  to  verify  the  fact 
assumed  in  Pakenham's  Case,  that  such  services  from  a  stationary 
ecclesiastical  corporation  might  be  due  by  prescription,  may  consult 
Y.  B.  22  Hen.  VI.  p.  46,  pi.  36;  Id.,  21  Hen.  VII.  p.  5,  pi.  2;  Wil- 
liams' Case,  5  Coke,  72b,  73a;  Slipper  v.  Mason,  Nelson's  Lutw.  43, 
45 ;  Rast.  Ent.  pi.  2b.  See,  further,  Middlefield  v.  Knitting  Co.,  160 
Mass.  267,  35  N.  E.  780. 

The  case  at  bar,  on  the  other  hand,  is  more  analogous  to  the  cove- 
nants for  title;  for,  although  rent  savors  of  the  realty,  any  warranty 
or  insurance  of  rent  is  a  purely  personal  contract,  of  which  another 
than  the  original  contractee  can  avail  himself  only  on  principles  of 
contract.  The  true  question  is  whether  such  a  guaranty  is  wholly 
analogous  to  covenants  for  title.  In  the  case  of  some  of  these,  at  least, 
assigns  of  the  covenantee  are  treated  as  privy  to  the  contract,  and  can 
sue  in  their  own  names ;  and,  when  this  is  so,  heirs  also  can  sue  in  their 
own  names  for  breaches  happening  while  they  hold  the  estate  of  the 
covenantee.  Lougher  v.  Williams,  2  Lev.  92;  Rawle,  Cov.  (5th  Ed.) 
§  316. 

But  this  right  thus  given  to  assigns  only  shortened  up  the  old 
process  by  which,  within  certain  limits,  each  purchaser  lopked  in  turn 
to  his  vendor  to  make  good  the  warranty  imported  by  a  sale.  It  is  a 
doctrine  of  tradition  and  history  (Norcross  v.  James,  140  Mass.  189., 
2  N.  E.  946),  and  cannot  be  extended  to  new  cases  by  analogy  with- 
out legislation.  The  old  cases,  so  far  as  we  know,  even  the  most  ex- 
treme, are  all  cases  of  warranties  or  covenants  by  owners  of  the  land. 
Fitzh.  Nat.  Brev.  145c.  Lord  St.  Leonard  says  that  "there  appears  to 
be  no  direct  authority  that  a  stranger  to  the  land  can  enter  into  cov- 
enants respecting  it,  which  will  run  with  the  land  in  the  hands  of 
assignees."  V.  &  P.  (14th  Ed.)  587.  And,  although  he  seems  to  have 
missed  the  distinction  between  the  two  classes  of  covenants  to  which 
we  have  adverted,  this  statement  we  believe  to  be  correct  with  re- 
gard to  covenants  for  title  and  any  others,  if  others  there  be,  which 
are  governed  by  the  same  rules.  King  v.  Wight,  155  Mass.  444,  447, 
29  N.  E.  644. 


426  RIGHTS   IN  THE  I>AND   OF  ANOTHER  (Part  2 

We  do  not  argue  from  the  rule  that  new  and  unusual  incidents  are 
not  to  be  annexed  to  land,  because  that  rule  seems  to  belong  rather 
to  the  law  of  easements  and  the  like  than  to  the  class  under  discussion. 
See  Norcross  v.  James,  140  Mass.  188,  192,  2  N.  E.  946. 

It  is  true,  no  doubt,  that  the  heirs  are  the  only  persons  interested  in 
the  rent,  and  therefore  are  the  only  persons  who  suffer  substantial  dam- 
ages by  a  failure  to  pay  it.  We  assume  that,  if  the  administrators  re- 
cover substantial  damages,  they  will  receive  them  as  trustees  for  the 
heirs.  We  agree,  as  suggested  by  Lord  EHenborough  in  a  different 
case,  that  a  recovery  by  them  would  bar  the  heirs  from  recovering  at 
all.  But  we  do  not  agree  to  his  further  suggestion  that  they  could  re- 
cover, at  most,  but  nominal  damages.  Kingdon  v.  Nottle,  1  Maule 
&  S.  355,  362.  At  the  present  day  a  trustee  may  recover  damages  to 
the  extent  of  the  interest  of  his  cestui  que  trust.  Drummond  v.  Crane, 
159  Mass.  577,  580,  35  N.  E.  90,  23  L.  R.  A.  707,  38  Am.  St.  Rep. 
460;  Lloyd's  v.  Hamper,  16  Ch.  Div.  290.  Executors  or  adminis- 
trators represent  the  person  of  the  deceased  "more  actually"  than  do 
the  heirs.  Co.  Litt.  209a;  Bullard  v.  Moor,  158  Mass.  418,  425,  33 
N.  E.  928.  Unless  we  are  prepared  to  hold  that  assigns  could  sue  in 
their  own  names  upon  this  contract,  we  ought  to  adhere  to  the  gen- 
eral rule,  and  allow  the  administrators  to  maintain  the  action.  For 
the  reasons  which  we  have  given,  we  are  of  opinion  that  the 
plaintiffs  can  maintain  this  suit.  In  Harbeck  v.  Sylvester,  13  Wend. 
(N.  Y.)  608,  609,  not  noticed  in  Allen  V.  Culver,  an  opposite  decision 
was  reached  from  that  in  Allen  v.  Culver.  See,  also,  as  to  collateral 
covenants,  Raymond  v.  Fitch,  2  Cromp.,  M.  &  R.  588,  599,  5  Tyrw. 
985,  996. 

Judgment  for  the  plaintiffs.®^ 

65  See  Webb  v.  Russell,  3  T.  R.  393  (1789),  post,  p.  566. 

A.,  owning  land  in  fee,  granted  to  X.  for  a  term  of  years  the  right  to  dig 
clay  in  a  specified  part  of  the  land.  X.  covenanted  with  A.  and  his  assigns, 
inter  alia,  to  pay  compensation  for  all  inclosed  lands  in  the  said  specified 
part  that  should  be  damaged  by  the  digging  and  that  he  would  keep  the 
works;  in  repair  and  deliver  them  up  in  good  condition  at  the  end  of  the 
term.  A.  then  conveyed  to  B.  all  his  estate.  Held,  B.  may  maintain  an  ac- 
tion against  X.  for  breaches  of  the  covenants  occurring  after  the  convey- . 
ance  by  A.  to  B. ;  the  St.  32  H.  8.  c.  34,  covering  incorporeal  as  well  as 
corporeal  interests.  Martyn  v.  Williams,  1  H.  &  N.  S17  (1857).  Ace:  Nor- 
val  V.  Pascoe.  34  L.  J.  N.  S.  Ch.  82  (1S64) ;  Hastings  v.  R.  R.,  [1898]  2  Ch. 
674 ;  Louisville  &  N.  R.  Co.  v.  Illinois  Cent.  R.  Co.,  174  111.  448,  51  N.  E.  824 
(1898);  Jordan  v.  Indianapolis  Water  Co.,  159  Ind.  337,  64  N.  E.  680  (1902). 
Sre  Portmore  v.  Bunn,  1  B.  &  C.  694  (1823). 

A.  "leased"  to  X.  the  privilege  of  sinking  oil  and  gas  wells  in  A.'s  land 
and  transporting  thence  the  oil  and  gas ;  X.  covenanting  to  supply  gas  to  A. 
for  the  use  of  A.'s  house  standing  on  the  land.  A.  assigned  all  his  interest 
to  B.,  and  X.  to  Y.  Y.  did  not  furnish  gas  as  stipulated.  Held,  B.  has  a 
cause  of  action  against  Y.  Indiana  Natural  Gas  &  Oil  Co.  v.  Hinton,  159 
Ind.  398,  64  N,  E.  224  (1902).  Accord,  where  B.'s  house  is  situated  upon  another 
tract  of  laud  never  owned  bv  A.  Harbert  v.  Hope  Natural  Gas  Co.,  76  \V. 
Va.  207,  84  S.  E.  770,  L.  R.  A.  1915E,  570  (1915). 


Ch.  4)  LEGAL    ENFORCEMENT    OF   COVENANTS  427 

SECTION  2.— AS  BETWEEN  OWNERS  IN  FEE 

I.  Agreements  under  Seal 

(A)  Formalities 


PAKENHAM'S  CASE. 
(Court  of  Common  Pleas,  1368.     Y.  B.  42  Edw.  Ill,  3,  pi.  14.) 

One  Lawrence  Pakenham  brought  a  writ  of  covenant  as  heir  against 
a  prior,  and  alleges  by  his  writ  that  he  does  not  keep  a  covenant  made 
between  one  J.,  his  ancestor,  towit,  the  grandfather  of  the  plaintiff, 
whose  heir  he  is,  and  one  of  his  predecessors,  because  the  prior  and 
the  convent  ought  to  sing  every  week  in  a  chapel  in  his  manor  of  K., 
for  himself  and  his  servants,  etc. 

Belknap.  The  plaintiff  and  his  servants  are  not  living  in  the  manor. 
Therefore  judgment  upon  the  writ. 

Cavendish.  This  goes  to  the  action,  therefore  if  you  wish  this  for 
your  answer,  we  desire  an  imparlance. 

Belknap.  The  deed  which  you  have  proffered  states  that  he  ought 
to  sing  for  him  and  his  servants  and  since  he  and  his  servants  do 
not  live  in  the  manor,  you  cannot  maintain  this  action. 

Cavendish.  Then  this  goes  to  the  action.  Therefore  if  you  wish  to 
answer  thus,  we  desire  an  imparlance. 

And  then  Belknap  did  not  dare  to  demur,  but  said  that  the  plaintiff 
had  an  older  brother  who  was  heir  to  the  ancestor,  to  whom  the  ac- 
tion should  be  given,  wherefore  judgment,  if  you,  who  are  the  young- 
er son,  and  not  the  heir,  ought  to  have  an  action. 

'  Cavendish.  The  plaintiff  is  tenant  of  the  manor  where  the  singing 
ought  to  be  done ;  in  which  case  it  is  reasonable  that  the  action  should 
be  maintained  by  him.  Wherefore  judgment,  and  we  demand  our 
damages. 

Belknap.  And  since  you  have  brought  your  action  as  heir,  and  you 
have  an  older  brother,  judgment,  if  you  have  an  action  as  heir,  etc. 

Ad  alium  diem : 

Cavendish  said  that  this  same  J.,  the  great-grandfather  of  the  plain- 
tiff enfeoffed  one  G.  of  M.  of  the  same  manor ;  the  said  G.  enfeoffed 
the  plaintiff",  and  one  Alice,  his  wife,  of  the  same  manor  to  them- 
selves and  the  heirs  of  their  two  bodies  begotten,  and  for  default 
of  issue,  the  remainder  to  J.  and  his  heirs.  So  the  plaintiff  is  tenant 
of  the  manor,  and  the  action  belongs  to  no  one  else  except  him. 
Wherefore  judgment,  and  we  pray  our  damages.  And  we  also  say  that 
since  the  feoffment,  the  singing  has  been  done  from  'time  whereof 
memory  is  not  to  the  contrary. 


428  RIGHTS  I-\   THE   LAND   OF  ANOTHER  (Part  2 

Belknap.  And  since  you  have  brought  this  action  as  heir,  and  yet 
it  is  not  denied  by  you  that  there  is  a  nearer  heir  to  him  who  made 
the  covenant,  to  whom  the  action  should  rather  be  given  than  to 
you,  we  consequently  pray  that  you  should  be  barred. 

Cavendish.  And  we,  judgment;  since  we  are  tenant  of  the  manor 
by  purchase,  and  'privy  to  the  ancestor  who  made  the  covenant,  and 
also  the  services  have  been  done  from  time  whereof  memory  is  not 
to  the  contrary.    Wherefore  judgment. 

Belknap.  Altho  he  is  privy  in  blood,  and  altho  he  has  bought 
the  land,  since  he  has  brought  this  action  as  heir,  and  he  is  not  heir,  and 
the  action  of  covenant  is  not  given  to  anyone  except  to  him  who  made 
the  covenant  or  his  heir,  therefore  we  do  not  understand  that  action, 
etc. 

Finchden.  I  have  seen  this  in  terms  adjudged  here:  That  two 
jparceners  made  a  division  of  the  land  between  'them,  and  the  one  par- 
cener niade  a  covenant  with  the  other  to  acquit  her  and  her  heirs  of 
a  suit  which  was  due  from  the  land,  and  the  parcener  aliened  the 
land  to  a  stranger,  and  then  the  suit  was  in  arrear,  and  the  stranger 
brought  a  writ  of  covenant  against  the  parcener  to  acquit  him  of  the 
suit.  And  the  writ  >  was  maintained  notwithstanding  that  he  was  a 
stranger  to  the  covenant.    And  so  here. 

Belknap.  I  admit  it  in  your  case  because  the  acquittance  fell 
Upon  the  land  and  not  upon  the  person;  and  here  the  covenant  is 
to  the  person. 

Finchden.  And  if  you  admit  that  this  is  law,  then  all  the  more 
strongly  in  the  other  case,  for  in  the  case  that  I  mentioned  of  the 
suit,  this  was  maintained,  because  he  was  tenant  of  the  land,  from 
which  the  suit  M-as  due,  and  so  it  is  here,  he  is  tenant  of  the  manor 
where  the  chapel  is,  and  it  ought  to  be  done  in  the  chapel.  Wherefore, 
etc. 

Wichingham.  If  the  king  grants  warren  to  another,  who  is  tenant 
of  a  manor,  he  shall  have  warren  of  all  the  manor,  and  if  he  aliens 
the  manor,  still  the  warren  does  not  pass  by  the  grant,  because  it  is  not 
appendant  to  the  manor,  and  it  seems  no  more  so  here,  since  the  serv- 
ices are  not  appendant  to  the  manor. 

Thorpe  to  Belknap.  There  are  some  covenants  upon  which  no 
one  shall  have  an  action  except  the  party  to  the  covenant  or  his  heir, 
and  other  covenants  have  inheritance  in  the  land,  so  that  he  who  has 
the  land  by  alienation  or  in  any  other  manner  shall  have  an  action 
of  covenant:  and  when  you  say  that  he  is  not  heir  he  is  privy  in 
blood. and  may  be  heir;  and  so  he  is  tenant  of  the  land,  and  this  is  a 
thing  which  is  annexed  to  the  chapel,  which  is  within  the  manor,  and 
so  annexed  to  the  manor :  and  also  he  has  said  that  the  services  have 
been  done  from  time  whereof  memory  is  not  to  the  contrary,  by 
which  it  is  reasonable  that  this  action  should  be  maintained. 

Belknap.     He  never  counted  upon  such  a  prescription,  in  his  count. 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  429 

Thorpe.  He  did  so  count,  and  we  remember  it.  And  it  was  ad- 
journed. 

And  it  was  said  that  if  I  lease  land  to  a  man  for  the  term  of  his 
life  rendering  certain  rent,  and  I  grant  the  reversion  of  the  same 
land  to  another  and  the  tenant  attorns,  that  the  grantee  shall  have 
the  rent  notwithstanding  that  he  has  no  specialty,  and  this  was  not 
denied,  etc. 


MORSE  V.  ALDRICH  et  al. 
(Supreme  Judicial  Court  of  Massaoiusetts,  1837.     19  Pick.  449.) 

This  was  an  action  of  covenant.  The  cause  was  tried  before  Put- 
nam, J. 

In  1794,  Stephen  Cook,  the  defendants'  ancestor,  conveyed  to  Wil- 
liam Hull,  in  fee,  a  tract  of  land  in  Watertown,  containing  about 
thirteen  acres;  with  the  privilege  of  using  and  improving  the  land 
and  mill  pond  west  of  the  same  tract,  for  the  purpose  of  fish  ponds, 
baths,  etc.,  within  certain  bounds  described,  including  a  portion  of  the 
grantor's  mill  pond;  and  the  "full  liberty  of  ingress,  egress,  and  re- 
gress to  and  from  any  part  of  the  said  described  land  and  water,  to 
dig  out  and  carry  away  the  whole  or  any  part  of  the  soil,  etc. ;  to 
build  such  causeways  and  dams  as  may  be  necessary  to  divide  the 
same  into  six  separate  and  distinct  fish  ponds." 

Hull  conveyed  the  same  premises  to  the  plaintiff. 

Afterward,  in  November,  1809,  an  agreement  under  seal  was  made 
by  and  between  Cook  and  the  plaintiff,  in  which,  in  consideration  of 
the  covenants  on  the  part  of  the  plaintiff,  Cook  covenants  with  the 
plaintiff,  his  heirs  and  assigns,  "that  he  will  draw  off  his  said  pond 
when  thereto  requested  by  said  Morse,  in  the  months  of  August  and 
September,  not  exceeding  six  working  days  in  the  whole,  in  each 
year,  for  the  purpose  of  giving  said  Morse  an  opportunity  ot  digging 
and  carrying  out  mud,  etc.,  as  long  as  there  may  be  mud  in  said  pond, 
and  no  longer."  It  was  upon  this  clause  that  the  present  action  was 
brought.  In  the  same  agreement  are  other  covenants,  some  concerning 
Morse's  land  and  Cook's  mill  pond,  and  some  concerning  the  dis- 
continuance and  costs  of  certain  actions  then  pending  between  Cook 
and  Morse.  Cook  does  not  covenant,  in  express  terms,  for  his  heirs 
or  assigns. 

It  was  contended  by  the  plaintiff,  that  the  covenant  above  recited 
was  a  covenant  running  with  the  land,  and  therefore  binding  upon  the 
defendants,  who  derive  their  title  to  their  estate  as  heirs  of  Cook,  as 
to  four  fifths  thereof,  and  as  assignees  by  quitclaim,  of  one  of  his  heirs, 
as  to  the  other  fifth.  And  this  construction  was  supported  at  the 
trial,  against  the  objection  of  the  defendant.  The  plaintiff  claimed  the 
right  to  take  the  mud,  etc.,  for  the  purpose  of  manuring  his  land. 


4t^0  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

The  plaintiff  requested  the  defendants  to  draw  off  the  pond  in  Sep- 
tember, 1835,  in  order  that  he  might  get  out  tlie  mud,  but  the  de- 
fendants refused.     *     *     * 

The  questions  reserved  were,  1.  Whether  the  covenant  ran  with  the 
land,  and  was  binding  upon  the  defendants  as  the  heirs  of  the  cove- 
nantor; 2.  Whether  the  privilege  extended  to  the  whole  pond,  or 
was  restricted  to  the  plaintiff's  own  land  under  the  pond.®® 

Wilde,  J.,  afterward  drew  up  the  opinion  of  the  Court.  The  de- 
fendants are  charged  as  the  heirs  of  Stephen  Cook,  their  ancestor,  with 
the  breach  of  a  covenant  made  by  him  with  the  plaintiff,  and  the 
question  submitted  to  the  Court  is,  whether  this  covenant  is  such  as 
is  binding  upon  the  heirs  of  the  covenantor  ?  And  the  decision  of  this 
question  depends  on  another,  namely,  whether  the  covenant  is  a  real 
covenant,  running  with  the  land,  which  the  defendants  inherit  from 
their  ancestor,  the  covenantor  ? 

It  is  generally  true,  as  has  been  argued  by  the  defendants'  counsel, 
that,  by  the  principles  of  the  common  law,  the  heir  is  not  bound  by 
the  covenant  of  his  ancestor,  unless  it  be  stipulated  by  the  terms  of 
the  covenant,  that  it  shall  be  performed  by  the  heir ;  and  unless  assets 
descend  to  him  from  his  ancestor  sufficient  to  answer  the  charge. 
Piatt  on  Cov.  449;  Dyer,  14a,  23a;  Barber  v.  Fox,  2  Saund.  136.  If 
therefore  the  heir  be  not  named  in  the  covenant,  it  will  be  binding  only 
on  the  covenantor,  his  executors  and  administrators,  although  the 
heir  may  take  by  descent  from  the  covenantor  assets  sufficient  to  an- 
swer the  claim. 

But  this  principle  is  not  to  be  applied  to  real  covenants  running  with 
the  land  granted  or  demised,  and  to  which  the  covenants  are  attached 
for  the  purpose  of  securing  to  the  one  party  the  full  benefit  of  the 
grant  or  demise,  or  to  the  other  party  the  consideration  on  which  the 
grant  or  demise  was  made.  Such  covenants  are  said  to  be  inherent  in 
the  land,  and  will  bind  the  heir  or  the  assignee  though  not  named.  For 
as  he  is  entitled  to  all  the  advantages  arising  from  the  grant  or  de- 
mise, it  is  but  reasonable  that  he  should  sustain  all  such  burdens  as  are 
annexed  to  the  land.    Piatt  on  Cov.  65. 

When  a  covenant  is  said  to  run  with  the  land,  it  is  obviously  implied 
that  he  who  holds  the  land,  whether  by  descent  from  the  covenantor, 
or  by  his  express  assignment,  shall  be  bound  by  the  covenant.  The 
heir  may  be  charged  as  an  assignee,  for  he  is  an  assignee  in  law,  and 
.so  an  executor  may  be  charged  as  the  assignee  of  the  testator.  Deris- 
ley  V.  Custance,  4  T.  R.  75 ;  Jac.  Law  Diet.  Assigns.  And  a  devisee 
may  be  charged  in  the  like  manner,  and  is  entitled  to  the  benefit  of 
any  covenant  running  with  the  land.  Kingdon  v.  Nottle,  4  Maule  & 
Selw.  53. 

If  then  the  covenant  in  question  runs  with  the  land,  it  is  clear  that 
the  defendants  are  liable ;    and  it  is  immaterial  whether  the  heirs  and 

«6  The  statement  of  facts  is  abridged. 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS         '      431 

assigns  of  the  covenantor  are  named  in  the  covenant,  or  not,  quia 
transit  terra  cum  onere.    Bally  v.  Wells,  3  Wils.  29. 

To  create  a  covenant  vi'hich  will  run  vi^ith  the  land,  it  is  necessary 
that  there  should  be  a  privity  of  estate  between  the  covenantor  and 
covenantee.  Spencer's  case,  5  Co.  16;  Cole's  case,  Salk.  196;  3  Wils. 
29;  Webb  v.  Russell,  3  T.  R.  40^;  Keppell  v.  Bailey,  2  Mylne  &  Keen, 
517;  Kyryan  v.  Arthur,'  1  Bam.  &  Cressw.  410.  In  these  cases,  and 
in  most  of  the  cases  on  the  same  subject,  the  covenants  were  between 
lessors  and  lessees;  but  the  same  privity  exists  between  the  grantor 
and  grantee,  where  a  grant  is  made  of  any  subortlinate  interest  in  land ; 
the  reversion  or  residue  of  the  estate  being  reserved  by  the  grantor, 
all  covenants  in  support  of  the  grant,  or  in  relation  to  the  beneficial 
enjoyment  of  it,  are  real  covenants  and  will  bind  the  assignee. 

This  principle  is  decisive  of  the  present  action.  It  appears  by  the 
deed  of  Stephen  Cook,  the  defendants'  ancestor,  to  William  Hull,  that 
the  former  conveyed  to  the  latter  a  tract  of  land  adjoining  the  mill 
pond  in  question,  "with  the  full  and  free  privilege  of  using  and  im- 
proving the  said  mill  pond  within  certain  limits,  with  tlie  full  liberty 
of  ingress  and  egress,  to  dig  out  and  carry  away  the  whole  or  any 
part  of  the  soil  in  said  pond,  and  to  divide  the  same  pond,  as  de- 
scribed in  the  deed,  into  six  separate  and  distinct  fish  ponds." 

William  Hull  conveyed  the  premises  to  the  plaintiff;  after  which, 
disputes  arose  between  Cook  and  the  plaintiff  relative  to  their  respec- 
tive rights,  and  for  settling  the  same  they  entered  into  sundry  cove- 
nants in  relation  to  said  grant,  and  qualifying  the  same;  for  the 
breach  of  one  of  which  this  action  was  brought.  At  the  time  these 
covenants  were  .made,  there  was  a  privity  of  estate  between  the  parties 
in  that  part  of  the  mill  pond  described  in  the  grant  to  Hull.  The  cove- 
nant in  question  was  made  in  reference  to  the  plaintiff's  right  and  in- 
terest under  that  grant,  and  was  manifestly  intended  to  confirm  it,  and 
to  secure  the  plaintiff  in  the  enjoyment  thereof.  This  covenant  there- 
fore, upon  the  principles  stated,  is  a  real  covenant,  running  with  the 
land,  and  is  binding  on  the  heirs  of  the  covenantor. 

Judgment  on  the  verdict.*'^ 

«7  In  Gilmer  v.  Mobile  &  M.  Ry.  Co.,  79  Ala.  5C9,  574  (5S  Am.  Rep.  623) 
(1S85) — for  facts,  see  post,  p.  452 — Somerville,  J.,  said:  "We  think,  in  tlais 
case,  the  plaintiff  retained  an  interest  in  the  land  conveyed  to  the  assignor 
of  the  defendant,  v>'hich  was  in  the  nature  of  an  easement.  He  not  only 
imposed  a  servitude  upon  tlie  land,  by  a  prohibition  against  the  sale  of  ar- 
dent spirits  on  the  premises,  but  retained  the  right  to  cultivate  it  under 
certain  conditions  and  circumstances ;  thus  retaining  an  interest  in  the  realty 
which  would  preserve  the  privity  of  estate  in  it  and  to  which  the  covenant 
of  defendant  would  attach,  or  become  annexed." 

A.  owned  land  with  a  water  privilege  appurtenant  thereto.  He  conveyed 
part  of  the  laud  and  a  proportionate  water  privilege  to  X.  The  race  through 
which  the  water  ran  went  first  to  A.'s  mill,  then  to  X.'s.  Five  days  after  the 
conveyance,  A.  and  X.  covenanted  that  for  the  improving  of  the  w-ater  pow- 
er ttey  should  erect  and  maintain  a  dam  and  Hume;  that  X.  would  pay  a 
proportionate  part  of  the  cost  of  erection  and  repairs.  A.  so  built.  X.'s 
interest  became  vested  in  Y.     The  dam  needed  repairs,  which  A.  made.     He 


432      '  BIGHTS   IX   THE   LAXD   OF   ANOTHER  (Part  2 

KURD  V.  CURTIS  et  al. 
(Supreme  Judicial  Court  of  Massachusetts,  1837.    19  Pick.  450.) 

Action  of  covenant.  The  declaration  recites  that  in  1816,  an  inden- 
ture of  four  parts  was  made  between.  Simon  Elliot  and,  Solomon  Cur- 
tis, of  the  first  part,  Moses  Grant,  of  the  second,  Hurd,  the  plaintiff, 
and  Charles  Bemis,  of  the  third,  and  John  Ware,  of  the  fourth,  own- 
ers of  the  mills  and  mill  privileges  on  the  upper  dam  of  Newton  Low- 
er Falls,  to  wit,  two  paper-mills  and  a  saw-mill,  with  their  mill  privi- 
leges, on  the  Needham  side  of  the  river,  and  four  paper-mills,  one 
fulling-mill  and  one  saw  mill  with  tlieir  mill  privileges,  on  the  Newton 
side,  for  the  purpose  of  fixing  the  quantity  of  water  which  the  several 
parties  should  have  a  right  to  draw  at  their  respective  mills  and  mill 
privileges,  to  regulate  the  use  of  the  same,  and  for  some  other  purposes 
therein  set  forth,  did  for  themselves,  their  heirs,  administrators  and 
assigns,  respectively  covenant  and  agree  to  and  with  each  other  and 
their  respective  heirs,  administrators  and  assigns,  that  the  six  paper- 
mills  and  the  fulling-mill,  should  have  the  first  and  exclusive  right  to 
the  use  of  the  water,  when  no  more  ran  to  the  paper  mills  and  fulling- 
mill  then  erected  and  used,  or  that  might  be  erected  and  used  on  the 
six  paper-mill  privileges  and  fulling-mill  priyilege,  than  should  be 
necessary  to  work  them  to  advantage,  and  that  the  saw-mill  owned  by 
Hurd  and  Bemis  should  have  the  second  right  of  water,  or  the  first 
right  to  the  overplus  water;  that  all  the  paper-mills  and  the  fulling- 
mill,  then  erected  or  that  might  be  erected,  should  be  altered  and  built 
with  breast-wheels,  each  for  a  power  equal  to  carrying  two  paper  en- 
gines, in  the  paper-mills,  and  for  a  power  equal  to  carrying  a  fulling 
and  wool-carding  machine,  in  the  fulling-mill,  that  all  the  gates  of  all 
the  mills  or  breast-wheels,  should  be  drawn  from  the  same  level,  and 
should  be  on  a  level  with  some  permanent  mark,  to  be  made  by  consent 
of  the'  parties ;  that  the  respective  parties,  and  their  heirs  and  assigns, 
should  have  a  right  to  substitute  and  erect  any  other  mills,  works  or 

brouglit  action  against  Y.  to  recover  his  proportionate  part  of  the  cost 
thereof.  Held,  T.  is  not  liable.  The  court  said:  "Did  the  plaintiffs  in  this 
case  have  any  estate  in  the  land  owned  by  the  defendant  at  the  time  this 
agreement  was  entered  into?  It  is  not  even  claimed  they  had.  N.or  did 
the  agreement  itself  create  any  such  interest.  There  is  no  attempt  in  it  to 
convey  any  estate  to  them,  nor  a  word  of  grant  in  the  whole  instrument. 
*  *  *  As  the  grantors  had  no  estate  in  the  land  owned  by  the  defend- 
ant when  the  agreement  was  entered  into,  but  were  mere  strangers  to  it, 
the  case  comes  directly  within  the  rule  announced  by  Lord  Coke,  and  very 
uniformly  followed  both  by  the  English  and' American  courts  since  his  time: 
Webb  V.  Russell  [3  Terra,  393  (1789)]  and  Stokes  v.  Russell.  Id.  G7S  [1790] : 
Hurd  V.  Curtis,  19  Pick.  [Mass.]  459  [1837];  Inhabitants  of  Plymouth  v. 
Carver,  16  Pick.  [IVIass.]  183  [1834].  See,  also,  an  elaborate  review  of  the 
question  in  1  Smith's  Lead.  Cas.,  note  to  Spencer's  case,  2  Wash.  li.  P. 
16  Pick.  183  [1834]."     Wheeler  v.  Schad.  7  Nev.  204,  210  (1871). 

See,  also.  Evansville  &  S.  I.  Traction  Co.  v.  Evansville  Belt  R.  Co.,  44 
Ind.  App.  153,  87  N.  E.  21  (1909). 


Ch.  4)  LEGAL    ENFORCEMENT    OF   COVENANTS  433 

machinery,  in  the  place  of  those  then  erected,  provided  the  new  mills, 
works  and  machinery  should  require  no  greater  power  than  the  mills, 
works  and  machinery  which  the  parties  had  a  right  to  erect  and  use  by 
virtue  of  the  indenture.  The  declaration  then  avers  that,  at  the  time 
of  the  making  of  the  indenture,  the  plaintiff  was  the  owner  of  one  un- 
divided half  of  the  saw-mill  on  the  Newton  side,  and  of  the  first  right 
to  the  overplus  water,  and  that  Bemis  was  the  owner  of  the  other  un- 
divided half;  that  in  1817,  Bemis  conveyed  his  half  to  the  plaintiff; 
that  the  two  paper-mills  and  paper-mill  privileges  on  the  Newton  side, 
which  belonged  to  Elliot  and  Solomon  Curtis,  and  the  fulHng-mill,  with 
the  privilege  of  water  to  work  a  fulling  and  wool-carding  machine, 
which  belonged  to  Ware,  have,  since  the  making  of  the  indenture,  been 
cunveyed  to  the  defendants,  and  these  two  paper-mill  privileges  and 
the  fulling-mill  privilege  have,  for  eleven  years  last  past,  been  used  and 
occupied  by  the  defendants ;  that  the  defendants  had  due  notice  and 
full  knowledge  of  the  covenants,  and  agreements  in  the  indenture  set 
forth,  on  the  part  of  Ware,  Elliot  and  S.  Curtis,  and  their  respective 
heirs,  administrators  and  assigns,  to  be  kept  and  performed,  and  that 
the  same  are  binding  upon  the  defendants ;  yet  that  the  defendants 
have  erected  and  used  and  now  use,  on  their  two  paper-mill  privileges, 
breast-wheels  constructed  for  a  power  much  more  than  equal  to  carry- 
ing two  paper  engines  in  each  of  their  paper-mills,  to  wit,  for  a  power 
equal  to  carrying  six  paper  engines  in  each  of  their  paper-mills,  and 
have  actually  carried  the  same,  and  on  the  fuUing-mill  privilege  they 
have  erected  and  used  breast-wheels  for  a  power  more  than  equal  to 
carr}'ing  one  fulling  and  wool-carding  machine,  to  wit,  for  a  power 
equal  to  carrying  four  fulling  and  wool-carding  machines,  and  have 
actually  carried  the  same ;  and  have  also  substituted  and  actually  used 
in  the  place  of  the  mills,  works  and  machinery  used  on  the  two  paper- 
mill  privileges  and  the  fulling-mill  privilege,  at  the  time  of  the  making 
of  the  indenture,  others  which  require  a  much  greater  power  to  carry 
the  same  than  those  which  the  defendants  have  a  right  to  erect  and 
use  thereon  by  virtue  of  the  indenture ;  whereby  the  plaintiff  has  lost 
the  use  and  benefit  of  his  saw-mill  and  of  his  first  right  to  the  overplus 
water,  as  secured  to  him  by  the  indenture. 

The  defendants  demurred. 

Wilde,  J.,"*  afterward  drew  up  the  opinion  of  the  Court.  The 
plaintiff  claims  damages  of  the  defendants  for  a  breach  by  them  of 
certain  covenants  contained  in  an  indenture  made  by  and  between  the 
plaintiff  and  several  other  persons,  who  were  owners  of  mills  on 
Charles  river,  at  Newton  Lower  Falls,  so  called,  the  object  and  intent 
of  the  indenture  being  to  limit  and  regulate  the  use  of  the  waters  of 
the  river  at  their  respective  mills.  The  defendants  were  not  parties  to 
the  indenture,  but  they  have  since  purchased  of  two  of  the  covenantors 

«8  Part  of  the  opinion  is  omitted. 
Big. Rights — 28 


■434  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

their  mills  mentioned  in  the  indenture,  and  the  question  is,  whether  they 
are  bound  as  assignees  by  any  of  the  covenants  between  the  contracting 
parties,  as  is  alleged  in  the  declaration. 

To  make  a  defendant  liable  to  an  action  of  covenant,  there  must  be 
a  privity  between  him  and  the  plaintiff.  Bally  v.  Wells,  3  Wils.  29. 
As  there  is  no  privity  of  contract  between  the  plaintiff  and  the  defend- 
ants, it  follows  that  the  defendants  are  not  liable  in  this  action,  unless 
there  is  a  privity  of  estate  between  them.  Where  such  a  privity  ex- 
ists between  the  covenantor  and  the  covenantee,  and  the  covenantor 
assigns  his  estate,  the  privity  thereby  created  between  the  assignee  and 
the  other  contracting  party,  renders  the  former  liable  on  all  such  cov- 
enants as  regulate  the  mode  of  occupying  the  estate,  and  the  like  cove- 
nants concerning  the  same.  And  so  if  the  covenantee  assigns  his  es- 
tate, his  assignee  will  have  the  benefit  of  similar  covenants.  These 
covenants  are  annexed  to  the  land  and  run  with  it.  But  if  there  is  no 
privity  of  estate  between  the  contracting  parties,  the  assignee  will  not 
be  bound  by,  nor  have  the  benefit  of  any  covenants  between  the  con- 
tracting parties,  although  they  may  relate  to  the  land  he  takes  by  as- 
signment or  purchase  from  one  of  the  parties  to  the  contract.  In  such 
a  case,  the  covenants  are  personal  and  are  collateral  to  the  land. 

Covenants  for  title  may  be  considered  as  an  exception  to  the  general 
rule,  and  the  reason  for  the  exception  is  very  strong;  for  nothing  can 
be  more  manifestly  just,  than  that  the  party  who  loses  his  land  by  a 
defect  of  title,  should  have  the  benefit  of  the  covenants  which  were 
intended  to  secure  an  indemnity  for  the  loss.  Such  a  covenant  is  de- 
pendent on  the  grant,  is  annexed  to  it,  as  part  and  parcel  of  the  con- 
tract, and  runs  with  the  land  in  favor  of  the  assigns  of  the  grantee 
or  covenantee ;  but  there  is  no  exception  to  the  rule,  that  no  covenant 
will  run  with  the  land  so  as  to  bind  the  assignee  to  perform  it,  unless 
there  were  a  privity  of  estate  between  the  covenantor  and  covenantee. 
"It  is  not  sufffcient,"  as  Lord  Kenyon  remarks,  in  Webb  v.  Russell,  3 
T.  R.  402,  "th^t  a  covenant  is  concerning  the  land,  but  in  order  to 
make  it  run  with  the  land,  there  must  be  a  privity  of  estate  between 
the  covenanting  parties."  And  so  the  law  has  been  laid  down  in  all 
the  cases  turning  on  this  point,  ever  since  Spencer's  case.    *    *    * 

Considering  this  principle  as  well  established  by  the  cases  cited,  and 
many  others  not  adverted  to,  we  are  of  opinion  that  this  action  cannot 
be  maintained,  as  there  was  no  privity  of  estate  between  the  covenant- 
ing parties.  Their  estates  were  several,  and  there  was  no  grant  of 
any  interest  in  the  real  estate  of  either  party,  to  which  the  covenants 
could  be  annexed.  The  stipulations  in  the  indenture  cannot  be  con- 
strued as  grants  and  covenants  at  the  same  time.  If  they  were  grants, 
then  an  action  of  covenant  is  not  the  proper  remedy  for  the  violation 
of  them ;  and  if  covenants,  the  assignee  is  not  bound,  for  want  of  priv- 
ity of  estate  between  the  parties. 

Nor  can  one  covenant  be  considered  as  a  grant,  and  the  other  as  a 
covenant,  for  the  stipulations  are  mutual,  and  if  one  is  to  be  construed 


Ch.  4)  LEGAL    ENFORCEMENT   OF   COVENANTS  435 

as  a  grant,  the  other  should  be  construed  in  the  same  manner.  If  the 
stipulation  that  one  party  is  to  have  the  first  preference  of  the  use  of 
the  water  for  certain  mills,  is  to  be  construed  as  a  grant,  the  like  stip- 
ulation, that  the  other  party  shall  have  the  second  preference,  cannot 
consistently  be  construed  as  a  covenant.  And  we  ought  not  to  give  a 
strained  construction  to  the  indenture,  for  the  purpose  of  extending  the 
obligation  of  the  contract  to  those  who  were  not  parties  thereto.  All 
the  stipulations  are  covenants  in  form,  were  doubtless  considered  as 
such  by  the  contracting  parties,  and  must  be  so  construed.  As  such 
they  are  mere  personal  covenants,  according  to  all  the  authorities,  and 
cannot  be  otherwise  construed,  without  determining  that  all  covenants 
concerning  lands  are  real  covenants,  and  binding  on  the  assignee,  how- 
ever remote;  which  certainly  cannot  be  maintained,  either  upon  au- 
thority or  upon  principle.  Such  an  extension  of  the  obligation  of  cov- 
enants might  be  productive  of  great  mischief  and  confusion  of  rights 
and  obligations  of  tlie  purchasers  and  owners  of  real  estate. 
Declaration  adjudged  insufficient.®* 


HORN  v.  MILLER  et  al. 

(Supreme  Court  of  Pennsylvania,  1890.     136  Pa.  640,  20  Atl.  706,  9  L.  K. 

A.  810.) 

Clark,  J.^"  This  action  was  brought  to  recover  damages  for  the 
diversion  of  the  water  of  Wills  creek,  from  the  channel  through  which 
the  plaintiff  supplied  the  wheel  of  his  grist-mill,  near  Hyndman,  in 
Bedford  county.  It  appears  that  the  waters  of  Wills  creek  divide  at 
a  point  about  a  mile  above  the  plaintift*'s  land,  (whether  from  arti- 
ficial or  natural  causes  does  not  appear,)  and  thence  proceeds  in  two 
channels,  one  by  the  plaintiff's  mill,  and  one  by  the  defendants'  mill,  to 
a  point  a  short  distance  below  both  mills,  where  a  junction  is  again 
effected.  It  also  appears  that,  in  the  year  1852,  John  Miller  owned, 
the  land  now  own6d  by  the  defendants,  and  also  the  land  adjoining,  up- 
on which  the  stream  divides,  now  owned  by  Jacob  Evans,  and  that 
Enoch  Cade  was  the  owner  of  some  42  acres  in  two  adjoining  parcels, 
one  containing  37  acres,  more  or  less,  part  of  the  New  Bridgeport 
tract,  the  other  containing  about  9  acres,  known  as  the  "Carpenter 
Lot." 

The  appellant's  contention  is  that  the  extent  of  his  right  is  fixed  by 
an  agreement  dated  July  8,  1852,  between  John  Miller  and  Enoch  Cade, 
who  were  thus  the  predecessors  in  title  to  the  respective  premises  in- 
volved in  this  controversy.  In  the  year  1852.  an  action  was  pending 
in  the  court  of  common  pleas  of  Bedford  county  in  which  Enoch  Cade 

09  See  Lawrence  v.  Whitney,  115  N.  Y.  410,  22  N.  E.  174,  5  L.  K.  A.  417 
(1889). 

10  The  statement  of  facts  and  part  of  the  opiniou  are  omitted.. 


436  RIGHTS   IX   THE   LAN'D   OF   ANOTHER  (Part  2 

was  plaintiff,  and  John  Miller  defendant.  The  action  was  brought  to 
recover  damages  for  the  diversion  by  Miller  of  the  water  of  Wills 
creek  to  his  saw-mill,  on  one  channel  of  the  'stream,  to  the  prejudice 
of  the  right  of  Cade,  who  was  the  owner  of  a  mill-site,  on  the  other 
channel.  The  matters  in  controversy  in  this  suit  were  settled  accord- 
ing to  the  terms  of  the  agreement  mentioned.  By  this  agreement  it  is 
provided,  in  substance,  as  follows:  Cade,  "his  heirs,  executors,  ad- 
ministrators, or  grantees,"  were  conceded  the  right  to  use  and  enjoy 
the  "water  right  or  power"  for  two  wheels,  of  any  capacity  and  size  he 
or  they  might  see  proper  to  construct,  on  either  of  the  lots  mentioned 
as  belonging  to  him,  "without  let,  hindrance,  or  diversion  by  said  Mill- 
er, his  heirs,  executors,  administrators,  or  grantees."  When  there  was 
any  surplus  water,  "over  and  above  what  may  be  needed  for  the  full, 
free,  and  uninterrupted  enjoyment  of  the  two  wheels,"  Miller  was  to 
have  thereof  what  is  sufficient  for  the  full  and  free  use  of  his  saw- 
mill, "not  requiring,  using,  or  diverting  more"  than  was  necessary  for 
that  purpose.  The  rest  of  the  water  of  said  creek  (and  there  was  to 
be  no  unnecessary  waste  of  the  water  by  either  party)  was  to  be  used 
and  enjoyed  by  Cade.  The  concluding  clause  of  the"  contract  is  as  fol- 
lows: "Said  Miller  is  to  have  a  flood-gate  erected  at  the  mouth  of  his 
head-race,  and  shut  the  same  down  tightly  and  securely  when  the  said 
creek  does  not  furnish  more  than  enough  for  the  said  two  wheels  of 
said  Cade,  as  aforesaid,  and  also  at  all  times  else  when  he  is  not  using 
his  own  mill,  and  at  all  times  is  not  to  interfere  in  any  way  with  said 
two  wheels,  as  aforesaid,  or  the  rest  of  said  water,  over  and  above 
his  own,  belonging  to  said  Cade  as  aforesaid." 

There  is  no  dispute  as  to  the  proper  construction  of  this  agreement. 
There  is  no  ambiguity  of  expression,  or  uncertainty  of  meaning,  al- 
leged, but  the  legal  effect  of  it  is  what  is  most  in  dispute.  It  is  cer- 
tainly clear  that  the  suit  pending  in  1852  was  for  redress  of  injuries 
for  an  invasion  of  Cade's  right  as  a  riparian  owner.  The  agreement 
was  made  in  adjustment  of  Cade's  right  as  such.  Miller  had  no  right 
by  artificial  means,  to  withdraw  the  water  from  Cade's  use.  He  was 
restricted  in  his  use  and  enjoyment  of  the  water  to  the  natural  flow, 
and  the  foundation  of  the  action  was  that  the  natural  condition  of  the 
stream  had  been  interfered  with.  The  agreement  was  virtually  a  rec- 
ognition of  the  superior  claim  of  Cade,  for  his  right  was  distinctly  rec- 
ognized and  entitled  to  a  preference,  and  was  intended  to  be  protected 
under  the  terms  of  the  agreement.  But  the  right  which  was  thus  pro- 
tected was  nevertheless  his  right  as  a  riparian  owner,  the  extent  of 
which,  in  view  of  all  the  facts  and  circumstances,  was  declared  and  es- 
tablished between  the  parties,  their  heirs,  executors,  administrators, 
and  assigns,  in  the  terms  of  the  contract. 

The  right  to  reasonable  use  of  water  in  its  natural  flow,  without 
any  diversion  of  it  from  its  ordinary  channel  by  artificial  means,  is 
incidental  to  the  ownership  of  the  land  through  which  it  flows,  and 
the  extent  to  which  it  may  be  used  and  applied  affects  the  use  and 


Ch.  4)  LEGAL   ENFORCEMENT    OF   COVENANTS  437 

consequent  value  of  the  land  itself.  These  covenants,  therefore,  relate 
to  the  land  of  the  respective  parties,  or  to  the  enjoyment  of  the  land 
which  ihey  had  in  possession  in  fee,  and  were  to  be  performed  upon 
and  in  connection  with  its  use  and  enjoyment.  The  present  parties  lit- 
igant have,  in  part  at  least,  the  same  lands  respectively  to  which  the 
agreement  relates,  also  in  fee.  The  covenants  were  by  the  covenantors 
for  the  mutual  benefit  of  themselves,  their  heirs,  executors,  administra- 
tors, or  grantees,  and  the  present  owners,  holding  the  land  by  convey- 
ance from  the  covenantors  respectively,  under  the  law  of  this  state, 
are  in  privity  of  estate  with  them  respectively.  There  was  no  privity 
of  estate  between  the  contracting  parties,  but  the  covenants  being  in 
adjustment  of  their  respective  rights  to  the  use  of  the  water  of  Wills 
creek,  must  be  construed  as  a  mutual  benefit  to,  and  not  as  a  burden 
upon,  the  lands  of  either. 

We  are  of  opinion,  therefore,  that  the  covenants  in  question  run 
with  the  land,  and  define  the  rights  not  only  of  the  parties  thereto,  but 
of  their  respective  heirs  and  assigns.  To  the  general  rule  that  between 
the  covenantor  and  covenantee  there  must  be  such  privity  of  estate  as 
would  formerly  have  given  rise  to  the  rule  of  tenure,  there  are  in  this 
state,  and  perhaps  in  some  of  the  other  states,  well-recognized  excep- 
tions. Covenants  capable  of  running  with  an  assignment  of  a  present 
estate  in  land  may,  it  seems,  have  that  capacity  in  certain  cases,  al- 
though no  estate  passes  between  the  covenantor  and  covenantee  at  the 
time  of  covenant  made.  The  obligation  of  contracts  is,  in  general, 
limited  to  the  parties  making  them.  Where  privity  of  contract  is 
dispensed  with,  there  must  ordinarily  be  privity  of  estate;  but  justice 
sometimes  even  requires  that  the  right  to  enjoy  such  contracts  should 
extend  to  all  who  have  a  beneficial  interest  in  their  fulfillment,  not  to 
impose  a  burden  upon  an  ignorant  and  innocent  third  person,  but  to 
enable  purchasers  of  land  to  avail  themselves  of  the  benefit  to  which 
they  are  in  justice  entitled.  The  character  of  a  covenant  of  this  kind 
must  depend  upon  the  efifect  of  the  entire  agreement  of  which  it  is  a 
part,  and,  where  the  benefit  and  the  burden  are  so  inseparably  con- 
nected that  each  is  necessary  to  the  existence  of  the  other,  both  must 
go  together.  The  liability  to  the  burden  will  be  a  necessary  incident  to 
the  right  to  the  benefit.    *    *    * 

The  effect  of  the  agreement  of  1852  was  therefore  to  adjust  and 
fix  the  rights  of  the  parties  thereto,  and  of  their  heirs  and  assigns.  It 
is  of  no  consequence  that  in  the  deeds  constituting  the  chain  of  title 
from  Cade  to  Horn  no  mention  of  this  agreement  is  made,  or  of  the 
rights  accruing  therefrom.  The  right  passes'  as  appurtenant  to  the 
land.  As  the  assignee  of  the  land  from  Cade  in  fee,  Horn  has  a  right 
to  enjoy  the  benefit  of  the  contract  which  runs  with  it.  This  action  is 
trespass  upon  the  case,  for  diversion  of  the  water  to  the  prejudice  of 
the  plaintiff's  rights  as  a  riparian  owner,  which,  in  view  of  the  alleged 
previous  artificial  diversion  of  the  waters  of  the  stream,  were  fixed 
and  determined  by  the  agreement  of  1852.    Trespass  was  the  proper 


138  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

remedy.  The  agreement  of  1852  established  the  rights  of  the  parties, 
and  the  covenants  were  to  that  effect  merely.  The  agreement  was 
equivalent  to  a  grant.  Whatever  may  be  conveyed  by  grant  may  be 
secured  by  covenant  in  this  form.  No  one  has  ever  supposed  before, 
as  was  said  in  Lindeman  v.  Lindsey  [69  Pa.  93,  8  Am.  Rep.  219],  su- 
pra, that  upon  a  grant  by  deed  of  an  easement  or  privilege  upon  land, 
or  land  covered  by  water,  of  one  man  to  another,  the  remedy  for  dis- 
turbance of  such  eas'ement  or  privilege  was  an  action  of  covenant  up- 
on the  deed.  Take  a  common  case  of  a  grant  or  reservation  of  a  right 
of  way.  Surely  an  action  on  the  case  may  be  maintained  by  the  gran- 
tee for  the  obstruction  of  it,  as  well  as  against  the  grantor  and  those 
claiming  under  him  as  against  strangers.  The  books  are  full  of  such 
cases,  in  which  no  such  point  was  made.  Citing  Watson  v,  Bioren,  1 
Serg.  &  R.  227,  7  Am.  Dec.  617;  Kirkham  v.  Sharp,  1  Whart.  333, 
29  Am.  Dec.  57 ;  Jamison  v.  McCredy,  5  Watts  &  S.  129 ;  Van  Meter 
V.  Hankinson,  6  Whart.  307 ;   Ebner  v.  Stichter,  19  Pa.  19. 

It  is  true  that  Horn  is  the  assignee  of  part  only  of  the  44  acres  held 
by  Cade,  to  which  this  covenant  is  applied,  but  his  rights  as  a  riparian 
owner  are  in  no  way  impaired  by  this.  If  after  the  water  leaves  the 
tail-race  of  his  mill  others  avail  themselves  of  its  power,  we  cannot 
see  how  this  can  affect  Miller.  But  non  constat  that  any  other  wheel 
will  be  placed  on  any  other  part  of  Cade's  tract.  One  thing  is  cer- 
tain,— that  the  mere  apprehension  of  this  cannot  excuse  Miller  for 
diverting  the  water  of  the  stream,  in  violation  of  the  contract.  It 
will  be  time  enough  to  provide  for  this  contingency  when  it  happens. 
We  are  of  the  opinion  that  the  learned  judge  of  the  court  below  erred 
in  entering  judgment  for  the  defendant  non  obstante  veredicto. 

The  judgment  is  therefore  reversed,  and  judgment  is  now  entered  on 
the  verdict  for  the  plaintiff  for  $52.''^ 

71  See  Shaber  v.  St.  Paul  Water  Co.,  30  Minn.  179.  14  N.  W.  874   (18Sc!). 

In  Hurxthal  v.  St.  Lawrence  Boom  &  Lumber  Co.,  53  W.  Va.  87,  44  S.  E. 
520,  97  Am.  St.  Rep.  954  (1903),  the  defendant  had  covenanted  with  one 
B.  H.  to  maintain  for  five  years  certain  dams  that  supplied  water  for  a  racf 
that  ran  thru  the  lands  of  the  defendant  and  of  B.  H. ;  B.  H.  covenanting^ 
in  return  therefor  to  pay  the  defendant  $75.00  a  year,  "and  the  said  obli- 
gation fto  pay  $75.00]  shall  be  *  *  *  a  covenant  running  with  the  land." 
An  option  was  given  to  B.  H.  "his  heirs,  representatives,  or  assigns"  ta 
extend  the  agreement  by  giving  notice  to  the  defendant.  B.  H.'s  interest 
passed  to  J.  H.,  who  gave  due  notice  of  an  extension  of  the  agreement,  and 
made  one  subsequent  annual  payment  of  the  $75.00.  The  defendant  then 
refused  to  keep  up  the  dams  as  provided  in  the  covenant,  and  J.  H.  brought 
action  for  this  breach.  Brannon,  J.,  said:  "It  is  true  that  this  covenant 
has  one  element  of  a  covenant  real  in  the  fact  that  it  benefits  the  estate 
of  the  covenantee,  the  mill  property;  but  it  laclis  another  material  element 
— ^privity  in  estate — as  the  company  conveyed  no  interest  in  the  mill,  but 
merely  made  a  per.sonal  obligation  on  the  company  touching  the  mill.  So 
this  covenant  is  not,  in  its  inherent  nature,  a  real  covenant.  But  does  its 
language  make  it  such?  The  agreement  malves  the  obligation  of  Hurxthal 
to  pay  for  maintaining  the  dam  one  running  with  the  land.  It  seems,  un- 
der the  law  above  stated,  that  this  would  not,  perhaps,  make  it  a  covenant 
real;  but  it  was  clearly  a  lien  in  its  terms  as  an  equitable  mortgage.  There 
is  no  such  provision  as  to  the  covenants  made  by  tbe  company,  and  we  in- 


Ch.  4)  LEGAL   ENFORCEMENT   OF   COVENANTS  439 

BURBANK  V.  PILLSBURY. 
(Supreme  Court  of  New  Hampshire,  1S69.    48  N.  H.  475,  97  Am.  Dec.  6'6o.) 

This  is  an  action  of  covenant  broken,  founded  upon  tiie  covenant 
against  incumbrances,  the  covenant  of  seisin,  the  covenant  that  the 
defendant  had  full  power  and  lawful  authority  to  sell  and  convey  in 
the  manner  he  assumed  to  do,  and  the  covenant  of  general  warranty, 
all  contained  in  a  warranty  deed,  executed  by  the  defendant  to  the 
plaintiff  and  dated  the  seventh  day  of  April,  1868,  in  common  form, 
purporting  to  convey  to  the  plaintiff  a  small  tract  of  land  in  Haver- 
hill; in  which  deed  the  land  conveyed  purported  to  be  conveyed  by 
metes  and  bounds  in  fee  simple,  without  any  reservation  or  exception, 
with  all  the  privileges  and  appurtenances  belonging  to  the  same. 

The  same  matter  is  relied  on  as  a  breach  of  each  of  said  covenants, 
and  consists  of  this,  viz. :  That  on  the  29th  day  of  August,  1838, 
one  Michael  Johnston,  Jr.,  was  seized  and  possessed  of  the  premises 
conveyed,  which  were  surrounded  on  three  sides  thereof  by  other  ad- 
joining lands  of  said  Johnston,  and  on  that  day  said  Johnston  by  his 
deed  of  that  date  conveyed  the  land  in  controversy  to  one  Apphia 
JNIartin,  with  the  following  clause  in  said  deed,  to  wit:  "Said  Apphia 
agrees  for  herself  and  her  heirs  and  assigns  that  she  and  they  will 
forever  make  and  maintain  a  good,  substantial,  and  lawful  fence  all 

« 

fer  it  was  not  so  intended.  But  there  is  the  clause  in  the  agreement  giving 
the  right  to  the  assignees  of  Hurxthal  to  continue  tlie  agreement  for  five 
years.  "What  is  the  effect  of  that  clause?  It  seems  to  be  well  settled  in  law 
that  if  a  covenant  is  not,  in  nature  and  kind,  a  real  covenant,  the  mere 
declaration  of  the  parties  that  it  shall  run  with  the  land  will  not  make  it  a 
real  covenant,  though  so  stated,  in  the  document.  8  Am.  &  Eng.  Ency.  1^. 
l.'?4 ;  2  Washb.  R.  Prop.  §§  1203,  1205 :  Gibson  v.  Holden  [115  111.  199,  3  N.  E. 
282  (1885)1  56  Am.  Rep.  146,  149.  Under  this  authority  I  do  not  see  how 
a  covenant  not  one  of  such  nature  as  to  run  with  land  could,  by  declaration 
in  the  agreement,  be  made  such,  so  as  to  place  an  obligation  on  the  land  in 
the  hands  of  subsequent  owners ;  but  this  covenant  is  one  not  placing  a  bur- 
den on  the  Hurxthal  mill,  but  benefiting  it,  and  the  company  agreed  that 
benefit  should  go  to  the  use  of  tlie  assigns  of  Hurxthal.  The  point  is  not 
without  difficulty,  but  it  does  seem  to  me  that  under  these  circumstances 
this  consent  of  the  company,  v.hile  it  would  not  place  a  burden  on  the  com- 
pany property,  wciuld  give  the  mill  property  of  Hurxthal  the  benefit  of  the 
covenant,  so  as  to  enable  the  plaintiff  as  alienee  to  sue  upon  it.  I  do  not 
know  that  it  will  add  anything  to  the  strength  of  this  position,  in  a  legal 
point  of  view,  to  rely  upon  the  fact  that  the  company  accepted  from  the 
plaintiff  pay  for  one  year's  maintenance  of  the  dam.  If  the  covenant  does 
not  give  her  right,  it  would  be  doubtful  whether  an  oral  agreement  would  do 
so  under  the  statute  of  fraud,  as  being  a  contract  not  performable  in  one 
year,  though  the  statute  is  not  pleaded.  This  is  not  material,  however,  be- 
cause I  hold  that  the  plaintiff  is  entitled  to  sue  for  a  breach  of  the  covenant 
occurring  during  her  ownership,  by  reason  of  the  clause  giving  tlie  benefit 
of  the  agreement  to  the  assignee  of  Ben  Hurxthal.  There  can  be  no  ques- 
tion but  that  the  plaintifL"  is  a  privy  in  estate  with  Ben  Hurxthal,  and,  an 
"assign"  within  the  meaning  of  that  word  used  in  said  agreement;  for  she 
purchased  at  the  judicial  sale,  which  by  law  cast  upon  her  the  entire  estate 
of  Ben  Hurxthal,  and  she  is  as  much  an  assignee  of  the  property  from  Ben 
Hurxthal  as  if  he  had  conveyed  it  to  her." 


440  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

around  said  premises  free  from  all  costs  and  every  expense  to  Michael 
Johnston,  Jr.,  his  heirs  and  assigns  forever."  This  deed  was  sea- 
sonably recorded. 

There  is  no  record  of  any  conveyance  of  the  premises  to  any  one 
by  said  Apphia  Martin.  But  Robert  French  and  others,  being  heirs 
of  said  Apphia  Martin,  conveyed  the  premises  to  the  defendant,  as 
such  heirs,  by  full  warranty  deed  in  common  form,  dated  May  8th, 
1854,  and  said  clause  in  said  Johnston's  deed  to  said  Apphia  Martin  is 
not  inserted,  and  in  no  manner  referred  or  alluded  to  in  this  deed.  In 
the  deed  from  the  defendant  to  the  plaintiff,  reference  is  made  in  the 
description,  to  the  deed  of  the  said  Robert  French  and  others  to  the 
defendant,  as  follows,  after  naming  boundaries  and  abuttals :  "Being 
all  and  the  same  land  conveyed  to  me  by  Robert  French  and  others  by 
deed  recorded  in  Grafton  County  Registry  of  Deeds,  liber  226,  folio 
Z77  "  But  no  reference  is  made  to  said  Johnston's  deed  or  to  any 
other  conveyance. 

The  plaintiff  relies  upon  the  existence  of  said  clause  in  said  John- 
ston's deed  to  said  Apphia  as  a  breach  of  each  of  said  covenants  ex- 
cept that  of  general  warranty,  and  in  respect  to  the  covenant  of  gener- 
al warranty  he  relies  on  that  clause,  and  the  fact  that  said  Johnston, 
by  virtue  of  said  clause,  claims  and  exercises  thie  right  of  turning  his 
animals  into  his  lands  adjoining  said  premises  without  contributing  to 
the  repair  of  said  fences,  and  the  further  fact  that  said  animals  have 
strayed  from  said  Johnston's  lands  upon  sai4  premises  and  damaged 
the  plaintiff's  crops. 

And  it  is  agreed  that,  if  upon  the  grounds  hereinbefore  stated  the 
plaintiff  can  maintain  an  action  of  covenant  broken  against  the  de- 
fendant upon  any  of  said  covenants,  judgment  shall  be  rendered  for 
the  plaintiff  for  such  sum  in  damages  as  the  court,  at  a  jury  term, 
shall  assess,  unless  the  defendant  elect  to  demur  generally  to  the  plain- 
tiff's declaration,  or  shall  confess  judgment  for  such  amount  as  he  may 
deem  expedient. 

It  was  agreed  that  the  writ  and  declaration,  and  copies  of  the  rec- 
ords of  any  conveyances  of  the  premises  in  question  might  be  used 
in  the  arguments  of  this  cause,  the  same  as  if  fully  set  forth  in  the 
agreed  case. 

In  the  argument  it  was  suggested  that  Apphia  Martin  is  described 
in  Johnston's  deed  as  a  married  woman. 

Smith,  J.^^  *  *  *  j^  j^^5  ht^xv  asserted  that  covenants  or  agree- 
ments made  by  owners  of  land  will  not  run  with  the  land  as  a  burden 
unless  there  is  between  the  covenantor  and  covenantee  a  privity  of  es- 
tate arising  upon  the  relation  of  tenure  between  them.  Assuming  that 
the  statute  of  "quia  emptores"  is  in  force  in  this  State,  it  is  clear  that 
no  relation  of  tenure  existed  between  Johnston  and  Apphia  Martin, 
the  original  grantor  and  grantee,  and  if  the  doctrine  just  referred  to 

»2  I'art  of  the  opinion  is  omitted. 


Cll.  4)  LEGAL    ENFORCEMENT   OF   COVENANTS  441 

is  correct,  it  would  follow  that  the  agreement  entered  into  between 
them  would  not  run  with  the  land.  But  we  are  not  disposed  to  adopt 
the  doctrine.  It  is  inconsistent  with  the  rule  that  certain  covenants 
for  title  entered  into  on  a  conveyance  in  fee  will  run  with  the  land. 
There  is  no  more  privity  of  estate,  in  the  sense  of  tenure,  Jo  support 
covenants  which  are  a  benefit  to  the  landowner  than  there  is  to  sup- 
port those  which  are  a  burden  to  him.  The  suggestion  that  the  running 
of  certain  covenants  for  title  with  the  land  is  an  exception,  may  be  met 
by  the  reply  of  Sir  Edward  Sugden  (just  quoted)  to  a  similar  sugges- 
tion upon  another  topic.  The  doctrine  that  privity  of  estate,  in  the 
sense  of  privity  arising  upon  tenure,  is  necessary  to  make  the  burden 
of  a  covenant  run  with  the  land,  is  also  entirely  at  variance  with  the 
rule  that  if  the  owner  of  an  estate  for  life  conveys  his  whole  estate 
reserving  an  annual  rent  which  the  grantee  covenants  to  pay,  the  gran- 
tor may  maintain  covenant  for  rent  against  an  assignee  of  the  gran- 
teo.  McMurphy  v.  Minot,  4  N.  H.  251,  is  exactly  that  case.  It  is 
there  said  by  Richardson,  C.  J.  (page  254) :  "Rent  may  be  reserved 
upon  a  grant  of  a  man's  whole  estate,  in  which  case  there  can  be  no 
reversion."  See  other  cases  cited  in  Delafield  v.  Parish,  25  N.  Y.  99. 
Considering  the  question  on  principle,  it  seems  to  us  that  in  a  case  Hke 
the  present  there  is  such  a  connection  between  the  parties  that  the 
agreement  should  run  with  the  land,  although  no  relation  of  tenure 
exists.     *     *     * 

Denio,  J.,  said  [in  Van  Rensselaer  v.  Hays,  19  N.  Y.  68,  91,  75  Am. 
Dec.  278]  :  "There  is  a  certain  privity  between  the  grantor  and  gran- 
tee of  the  land.  It  is  not  the  privity  arising  upon  tenure,  for  there  is 
no  fiction  of  fealty  annexed.  It  is,  however,  the  same  sort  of  privity 
which  enables  the  grantee  of  a  purchaser  to  maintain  an  action  upon 
the  covenants  of  title  given  to  his  vendor ;  and  it  is  moreover  a  privity 
af  the  same  nature  with  that  which  obtains  between  the  grantor  and 
gfantee  of  terms  for  life  and  years.  It  is  notorious  that  the  grantee 
of  a  term  is  liable  upon  covenants  which  are  in  their  nature  capable  of 
running  with  the  land,  such  as  covenants  to  pay  rent,  to  repair  and 
the  like,  which  his  grantor  made  with  the  owner  of  the  reversion.  In 
this  case  there  is,  it  is  true,  a  reversion,  and  that  may  be  indispensable 
to  enable  the  covenantee  to  assign  the  obligation  made  to  him ;  but  it 
is  not  easy  to  see  how,  upon  any  kind  of  reasoning,  the  presence  or  ab- 
sence of  a  reversion  can  affect  the  relations  between  the  party  prima- 
rily chargeable  upon  the  covenants,  and  another  to  whom  he  conveys 
the  land,  charged  with  the  performance  of  these  covenants.  It  is  ob- 
vious that  the  fiction  of  a  feudal  tenure  has  nothing  to  do  with  the 
case."    *     *     * 

The  cases  where  the  original  covenanting  parties  stood  in  the  rela- 
tion of  landlord  and  tenant  are  not  in  point,  because  there  the  relation 
of  tenure  existed;  nor  are  the  cases  where  covenants  are  entered  in- 
to for  the  performance  of  acts  on  land,  but  no  conveyance  of  land  is 
made  at  the  same  time.     In  the  latter  class  of  cases  "the  covenantor 


4^2  RIGHTS   IN   THE   LAND   OF  ANOTHER  (Part  2 

takes  nothing  in  the  land  at  the  time  of  the  covenant  made,"  and  the 
equitable  considerations  which  apply  to  a  covenantor  and  his  assigns 
who  enjoy  the  land  in  fee  under  a  conveyance  which  was  a  part  of 
the  same  transaction  with  the  covenant  are  wanting.'^  Cases  falling 
under  th^e  classes,  not  being  in  point,  have  not  been  cited 
here.     *     *     * 

Unless  the  defendant  elects  to  demur,  or  confess,  there  must  be 

Judgment  for  plaintiff.^* 


BROWN  v.  SOUTHERN  PAC.  CO. 

(Supreme  Court  of  Oregon,,  1899.    36  Or.  128,  58  Pac.  1104,  47  L.  R.  A.  409,  78 

Am.   St.  Rep.  761.) 

This  is  an  action  to  recover  damages  resulting  from  the  killing  of 
four  of  plaintiff's  cows  by  defendant's  locomotive.  The  negligence  al- 
leged as  constituting  the  cause  of  action  is  defendant's  failure  to  place 
gates  or  bars  at  the  intersection  of  its  right  of  way  with  a  private  road 
crossing  a  farm  cultivated  by  plaintiff,  in  consequence  of  which  said 
cows  got  upon  the  track  and  were  killed.  The  answer,  after  denying 
the  material  allegations  of  the  complaint,  avers  that  on  November  10, 
1870,  Samuel  Brown  and  Elizabeth  Brown,  his  wife,  executed  a  deed 
to  the  Oregon  &  California  Railroad  Company,  a  corporation,  convey- 
ing a  strip  of  land  60  feet  in  width  across  said  farm,  and  therein  cov- 
enanted with  said  corporation,  its  successors,  and  assigns,  to  build  and 
maintain  a  fence  on  each  side  of  the  railroad  to  be  built  through  said 
premises;  that  said  deed  was  duly  recorded  in  the  records  of  Marion 
county  on  November  11,  1870,  and  plaintiff  had  full  notice  and  knowl- 
edge thereof ;  that  defendant  is  the  lessee  of  said  corporation,  and 
successor  in  interest  of  its  right  of  way  and  of  said  covenant;  that 
plaintiff  is  the  son  and  successor  in  interest  of  Samuel  Brown,  and 
as  such  used  and  occupied  said  farm,  and  the  private  crossing  there- 
on, subject  to  said  covenant ;  that  said  cows  got  upon  defendant's 
track  at  said  crossing  by  reason  of  plaintiff's  failure  to  place  gates 
or  bars  thereat,  and  were  killed  without  any  fault  upon  defendant's 
part.  The  reply  having  put  in  issue  the  allegations  of  new  matter  con- 
tained in  the  answer,  a  trial  was  had,  in  which  the  jury,  in  pursuance 
of  the  court's  instructions,  returned  a  verdict  for  the  defendant,  and, 
a  judgment  having  been  rendered  thereon,  plaintiff  appeals. 

7 3 A.  owned  a  mill  and  dam.  B.  covenanted  with  A.  and  his  grantees 
that  he  would  keep  the  dam  in  repair.  A.  conveyed  the  property  to  C 
Held,  C.  has  no  right  of  action  against  B.  upon  the  covenant.  Lyon  v. 
Parker,  45  Me.  474   (1858). 

A.  covenants  with  B.  not  to  erect  a  mill  on  land  owned  by  A.  A.  conveys 
the  land  to  C.  Held,  C.  is  not  liable  to  B.  on  the  covenant.  Harsha  v. 
Reid,  45  N.  Y.  415  (1871). 

T4A0C.:     Georgia  Southern  R.  Co.  v.  Reeves,  G4  Ga.  492   (1880). 


Ch.  4)  LEGAL   ENFORCEMENT   OF   COVENANTS  443 

IMooRE,  J.^"  (after  stating  the  facts).  The  question  presented  for 
consideration  is  as  to  whether  the  covenant  in  the  deed  of  Samuel 
Brown  and  wife  to  the  Oregon  &  CaHfornia  Railroad  Company  cre- 
ated a  charge  upon  their  estate  running  with  the  land,  and  binding 
upon  plaintiff.  The  said  covenant  is  as  follows:  "And  we  further 
agree  to  build  and  maintain  a  fence  on  such  side  of  said  railroad 
through  the  premises  herein,  north  of  the  town  of  Gervais,  or  not  hold 
such  railroad  responsible  for  any  damage  done  to  stock  belonging  to 
us."  The  right  to  have  a  division  fence  built  or  repaired  by  an  ad- 
joining proprietor  is  a  benefit  to  the  dominant  and  a  detriment  to  the 
servient  estate,  which  is  in  the  nature  of  a  distinct  easement,  affect- 
ing the  lands  of  the  proprietor  upon  whom  the  burden  is  imposed. 
Tyler,  Bound.  343 ;  Washb.  Easem.  (2d  Ed.)  601 ;  Bronson  v.  Cof- 
fin, 108  Mass.  175,  11  Am.  Rep.  335.  It  has  been  held  that  a  covenant 
to  build  or  maintain  a  division  fence  creates  an  incumbrance  upon  the 
covenantor's  estate,  which  .runs  with  the  land,  if  so  intended  by  the 
parties  to  the  deed.  12  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  1049 ;  Beach 
V.  Grain,  2  N.  Y.  86,  49  Am.  Dec.  369;  Burbank  v.  Pillsbury,  48  N.  H. 
475,  97  Am.  Dec.  633.  In  order  to  determine  whether  a  clause  in  a 
deed  conveying  real  property  is  to  be  construed  as  a  covenant  running 
with  the  land,  or  a  condition  personal  to  the  parties,  it  is  necessary  to 
consider  two  subordinate  questions :  First,  whether  the  right  granted 
or  the  burden  imposed  is  connected  with  the  land  affected  by  the  con- 
veyance, or  collateral  to  it;  and,  second,  if  found  to  be  the  former, 
whether  the  situation  of  the  parties  and  the  condition  of  the  subject- 
matter  enable  the  court  to  say,  from  an  inspection  of  the  language  of 
the  deed,  that  it  was  the  intention  of  the  parties  thereto  that  the  cove- 
nant should  run  with  the  land.  Masury  v.  Southworth,  9  Ohio  St. 
340.  In  Kellogg  v.  Robinson,  6  Vt.  276,  27  Am.  Dec.  550,  Mr.  Justice 
Phelps,  after  speaking  of  those  covenants  which  necessarily  run  with 
the  land,  says :  "There  is  another  class  of  covenants  of  a  doubtful  or 
equivocal  character,  and  which  may  be  treated  either  as  merely  person- 
al, or  as  annexed  to  and  running  with  the  land.  With  respect  to  these, 
it  is  doubtless  competent  for  the  contracting  parties  to  make  them 
either  tlie  one  or  the  other,  as  they  think  expedient.  When,  there- 
fore, the  party  covenants  for  himself  and  his  assigns,  it  evinces  an 
intent  to  bind  the  land,  and  the  obligation  becomes  connected  with  and 
qualifies  his  estate."  An  examination  of  the  covenant  in  the  deed  of 
Samuel  Brown  and  wife  shows  that  it  does  not  include  their  "assigns" 
in  express  words,  and,  inasmuch  as  the  fence  along  the  right  of  way 
was  not  in  esse  at  the  time  the  deed  was  executed,  it  is  contended  that 
the  omission  in  this  particular  manifests  an  intention  that  the  covenant 
should  be  personal  only.    *    *    * 

The  word  "heirs"  is  not  now  necessary  to  create  or  convey  an  es- 
tate in  fee  simple.    All  of  the  grantor's  estate  passes  by  his  deed,  un- 

T6  Part  of  the  oinilion  is  omitted. 


444  RIGHTS   IN  THE   LAND   OP   ANOTHER  (Paft  2 

less  the  intent  to  convey  a  less  estate  appears  by  express  terms,  or  is 
necessarily  implied  from  the  language  of  the  deed.  Hill's  Ann.  Laws 
Or.  §  3005.  The  statute  not  having  prescribed  that  the  word  "assigns," 
or  other  words  of  like  import,  shall  be  necessary  to  make  a  covenant 
run  with  the  land,  the  omission  of  such  words  from  a  deed  by  which 
a  right  is  connected  with  the  dominant  estate,  or  an  obligation  inheres 
in  the  servient  estate,  does  not  necessarily  evidence  an  intention  that 
the  clause  conferring  the  right  or  imposing  the  burden  is  a  condition 
personal  to  the  party  charged  with  its  performance.  An  examination 
of  the  language  of  the  deed  for  the  purpose  of  ascertaining  the  inten- 
tion of  the  parties,  shows  that  the  grantors  stipulated,  in  effect,  that, 
if  they  neglected  to  build  or  maintain  the  fence  agreed  upon,  the  gran- 
tee should  not  be  held  responsible  for  any  damage  resulting  from  such 
neglect  to  stock  belonging  to  them.  This  exemption  from  liability  is 
the  legal  result  of  the  grantors'  failure  to  comply  with  the  terms  of 
their  deed,  and  necessarily  follows  their  neglect  to  build  and  maintain 
the  fence,  without  being  recited  in  the  deed ;  for  the  rule  is  well  set- 
tled that,  if  an  adjoining  landowner  agree  with  a  railroad  company  to 
build  and  maintain  a  fence  along  its  right  of  way,  the  company  is  not 
liable  to  such  proprietor,  or  to  his  assigns,  who  take  his  estate  with  no- 
tice thereof,  for  injury  resulting  from  neglect  to  perform  or  keep 
such  agreement.  12  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  1071 ;  Railway 
Co.  V.  Washburn,  97  111.  253 ;  Duffy  v.  Railroad  Co.,  [2  Hilt.  (N.  Y.) 
496],  supra.  No  agreement,  however,  entered  irlto  between  a  railroad 
company  and  an  adjoining  proprietor,  whereby  he  stipulates  to  build 
and  maintain  division  fences,  will  absolve  the  company  from  liability 
to  persons  not  parties  to  the  contract,  or  in  privity  with  them,  for 
injury  resulting  from  the  land  owner's  failure  to  keep  his  engagement 
in  this  respect.  12  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  1072;  Railway 
Co.  V.  Williamson,  104  Ind.  154,  3,N.  E.  814;  Warren  v.  Railroad  Co., 
41  Iowa,  484;  Thomas  v.  Railroad  Co.,  82  Mo.  538;  Oilman  v.  Rail- 
way Co.,  60  Me.  235.  A  tenant  who  enters  upon  land  with  notice  of 
his  landlord's  covenant  with  a  railroad  company  to  build  and  maintain 
a  division  fence  along  the  right  of  way,  can  acquire  by  the  demise  no 
greater  estate  in  the  premises  than  his  landlord  possessed  therein,  and 
hence  he  has  no  remedy  against  the  company  for  injury  to  his  stock 
resulting  from  the  landlord's  failure  to  build  or  repair  such  fence. 
Easter  v.  Railway  Co.,  14  Ohio  St.  48 ;  Duffy  v.  Railroad  Co.,  supra ; 
Railway  Co.  v.  Petty,  25  Ind.  413;  Railway  Co.  v.  Washburn,  supra. 
If  Samuel  Brown  and  his  wife  had  leased  their  land,  their  tenant's 
stock  could  not,  in  any  sense,  be  regarded  as  their  own.  The  right  con- 
ferred by  their  deed  upon  the  railroad  company  was,  so  far  as  they 
were  concerned,  to  permit  it  to  operate  its  trains  without  fencing  its 
right  of  way,  and  by  exempting  it  from  liability  for  injury  to  stock  be- 
longing to  them  they  would,  in  such  case,  thereby  impliedly  reserve 
the  right  to  their  tenant,  which  he  could  enforce,  of  compelling  it  to 
fence  its  track  across  their  premises,  or  be  responsible  to  him  for  any 


Ch.  4)  LEJ3AL    ENFORCEMENT   OF   COVENANTS  445 

injury  to  his  stock  in  consequence  of  a  failure  to  do  so  ;  for  by  exempt; 
ing  the  company  from  liability  for  stock  belonging  to  them  only  they 
restricted  its  right  to  use  the  track  without  fencing  to  the  time  in  which 
they  had  possession  of  the  premises,  and  made  it  responsible  to  their 
tenant  for  damage  done  by  it  to  his  stock  in  consequence  of  its  failure 
to  fence  the  track  through  said  premises ;  and  what  is  true  of  their 
tenant's  stock  must  apply  with  equal  force  and  reason  to  the  stock  of 
their  successor  in  interest.  The  failure  to  include  the  word  "assigns" 
in  the  deed  is  not  controlling  if  it  can  reasonably  be  inferred  from  the 
language  of  the  instrument  that  the  parties  intended  that  the  covenant 
should  run  with  tlie  land;'^  but  the  absence  of  such  word,  or  other 
words  of  like  import,  may  be  considered  in  connection  with  the  con- 
text of  the  deed  in  arriving  at  the  intent  of  the  parties  in  this  respect. 
Giving  to  the  deed  such  construction,  we  think  the  parties  thereto  nev- 
er intended  that  the  stipulation  to  build  and  maintain  the  fence  should 
be  regarded  as  a  covenant  running  with  the  land,  but  that  such  clause 
was  meant  to  be  a  condition  personal  to  the  grantors,  and  binding  up- 
on them  only.     *     *     * 

it  follows  that  the  judgment  is  reversed,  and  a  new  trial  ordered.'^^ 

7 6 Ace:  Dotv  V.  Cliattanoosa  Union  Ry.  Co.,  103  Tenn.  564,  53  S.  VV.  944. 
4S  L.  R.  A.  160  (1S99). 

7TA.  conveyed  a  strip  of  land  to  the  X.  Railroad  Company,  and  the  latter 
covenanted  to  erect  a  station  on  the  land  conveyed  and  to  stop  its  trains 
ther^.  The  rest  of  A.'s  adjacent  land  came  to  B.,  and  the  X.  Railroad  Com- 
pany was  succeeded  by  the  Y.  Railroad  Company.  B.  brought  action  against 
the  Y.  Railroad  for  breach  of  the  covenant.'  The  court  (Worthington,  J.) 
said:  "In  the  case  at  bar  the  covenant  was  made  with  reference  to  some- 
thing not  then  in  esse,  and  there  are  no  words  of  limitation  to  the  heirs  and 
assigns  of  the  grantor.  It  is  contended,  however,  that  since  Acts  1856,  p. 
253."c.  154  (Code  Pub.  Gen.  Laws  1904,  art.  21,  §  11),  as  words  of  inheritance 
are  unnecessary  to  create  a  fee,  the  covenant  in  this  case  being  in  the  na- 
ture of  a  reconveyance  of  an  interest  in  the  lands  conveyed,  such  words  are 
unnecessary  here.  •  *  ♦  Here  the  right  was  created  by  way  of  a  coven- 
ant which  *  *  *  extended  to  something  not  in  existence  at  the  date  of 
the  deed,  and  the  words  'heirs  and  assigns'  are  not  expressed.  Under  the 
circumstances  we  do  not  think  the  act  of  1S56  does  away  with  the  necessity 
for  the  use  of  these  words  in  order  tp  pass  the  right  created  by  the  covenant 
in  question  to  an  assignee  of  the  grantor."  Maryland  &  P.  R.  Co.  v.  Silver, 
110  :Md.  510,  516,  73  Atl.  297  (1909).  See  Gulf,  C.  &  S.  Ry.  Co.  v.  Smith,  72 
Tex.  122,  9  S.  W.  sm,  2  I..  R.  A.  281  (1888) ;  Kellogg  v.  Robinson,  6  Vt.  276,  27 
Am.  Dec.  550  (1834). 


446  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

(B)  What  Covenants  Run 

NATIONAL  UNION  BANK  AT  DOVER  v.  SEGUR. 
(Supreme  Court  of  New  Jersey,  1877.     39  N.  J.  Law,  173.) 

On  demurrer  to  the  declaration. 

The  articles  of  agreement,  sued  on,  commenced  in  these  words,  viz. : 
"Agreement  made  this,  &c.,  between  Anson  G.  P.  Segur,  of,  &c.,  of 
the  first  part,  and  Hudson  H6agland,  of,  &c.,  of  the  second  part,  wit- 
nesseth." 

The  substance  of  the  agreement  was,  that  Segur  would  sell  and 
convey  to  Hoagland  a  certain  lot  and  banking-house.  After  this  stip- 
ulation, then  followed  these  recitals  and  covenants,  to  wit : 

"And  whereas,  the  said  Segur  is  now  engaged  in  the  business  of 
banking  as  a  private  banker  in  Dover  aforesaid ;  and  whereas,  the 
said  Hoagland  intends  to  associate  himself  with  other  persons  to  or- 
ganize a  banking  association,  to  be  located  and  to  do  business  in  Dover 
aforesaid,  and  expects  to  convey  said  lot  of  land  and  banking-house 
to  said  banking  association  when  organized  and  ready  to  commence 
business,  to  be  occupied  and  used  by  said  association;  and  whereas, 
it  is  a  part  of  the  consideration  of  this  sale  of  said  lot  and  banking- 
house,  that  said  Segur  shall  withdraw  from  the  business  of  banking, 
and  not  engage  in  the  same  at  any  time  within  ten  years  in  tlie  borough 
of  Dover  aforesaid : 

"Now  it  is  further  agreed  between  the  said  parties,  and  said  Segur 
doth  hereby  covenant  and  agree  with  the  said  Hoagland,  that  as  soon  as 
said  new  banking  company  or  association  so  expected  to  be  organized, 
or  any  banking  company  to  whom  the  said  Hoagland,  his  heirs  or 
assigns,  may  hereafter  lease,  convey  or  assign  said  premises  and 
banking-house,  or  any  part  of  the  same,  shall  commence  the  business 
of  banking  therein,  then  and  from  thenceforth  the  said  Segur  shall 
withdraw  in  good  faith,  as  soon  as  practicable,  from  the  business  of 
banking  in  said  borough  of  Dover,  and  shall  abstain  from  receiving  or 
accepting  any  money  on  deposit'  as  a  banker  therein ;  and  shall  not, 
at  any  time  for  the  space  of  the  ten  years  thereafter,  engage  directly 
or  indirectly,  in  the  business  of  banking  in  said  borough  of  Dover,  either 
as  a  private  banker,  a  capitalist  or  as  a  shareholder  or  director  in 
or  as  an  officer  or  employe  of  any  banking  company  or  association,  or 
savings  bank,  located  in  or  doing  business  in  said  borough  of  Dover; 
provided,  that  nothing  herein  contained  shall  be  construed  as  preventing 
said  Segur  from  being  a  shareholder  in  or  an  officer  or  employe  of 
any  banking  company  or  savings  bank  which  may,  at  any  time,  be 
the  owner  or  occupant  of  the  lot  of  land  hereby  agreed  to  be  conveyed, 
or  any  portion  thereof. 

"And  it  is  further  agreed  and  understood  that  this  covenant  on  the 
part  of  said  Segur  to  abandon,  abstain  from,  and  not  engage  in  the 


Ch.  4)  LEGAL   ENFORCEMENT   OF   COVENANTS  447 

business  of  banking  in  said  borough  of  Dover  for  the  period  of  ten 
years,  is  made  for  the  benefit  of  said  Hoagland,  as  the  owner  of  said 
lot  of  land  and  banking-house,  and  shall  attach  to  and  run  with  the 
same  in  tlie  hands  of  any  heir  or  heirs,  assignee  or  assignees,  gran- 
tee or  grantees  of  said  Hoagland ;  and  in  case  of  any  breach  of  the 
same  by  said  Segur,  an  action  may  be  maintained  thereon  against  him 
by  the  person  or  persons  or  body  corporate  who  shall,  at  the  time  of 
such  breach,  be  the  owner  of  the  fee  simple  of  said  lot  of  land  so 
hereby  agreed  to  be  conveyed;  and  it  is  further  agreed,  in  order  to 
insure  the  observance  by  said  Segur  of  his  said  covenant  to  abandon, 
abstain  from,  and  not  engage  in  the  business  of  banking,  for  the 
period  aforesaid,  in  Dover  aforesaid,  that  in  case  of  any  breach  there- 
of by  him,  the  damages  to  be  recovered  in  any  action  against  him  for 
such  breach,  shall  be  and  they'  are  hereby  fixed  and  liquidated  by  the 
parties  thereto  at  the  sum  of  $10,000. 

"In  witness  whereof,  the  parties  have  hereunto  set  their  hands  and 
seals  the  day  and  year  first  above  written. 

"[Signed.]  Anson  G.  P.  Segur.     [L.  S.] 

"H.  Hoagland.  [L.  S.]" 

The  declaration  also  showed  a  conveyance  of  the  premises  in  ques- 
tion from  Hoagland  to  the  plaintiff,  and  averred  that  they  were  still  the 
owners  thereof. 

BeaslEy,  C.  T-^*  The  contention  on  the  part  of  the  defence,  on  the 
argument  of  this  demurrer,  was,  that  the  right  of  action  disclosed 
in  the  record  was  not  resident  in  the  plaintiff.  The  deed  in  suit,  in  its 
commencement,  purports  to  be  made  between  Segur,  of  the  first 
part,  and  Hoagland,  of  the  second  part ;  and  it  was  insisted  that  when 
a  sealed  instrument  is  so  conditioned,  the  suit  must  be  by  the  formal 
party  to  it.  The  plaintiff  is  the  grantee  of  the  premises  sold  to  Ifoag- 
land,  and  claims  the  right  to  enforce,  in  its  own  name,  the  agreement, 
by  virtue  of  the  last  clause  in  it,  which  is  to  the  effect  that  in  cjse  of 
a  breach  of  the  covenant  now  sued  on,  the  right  of  action  shall  be 
in  the  owner  in  fee  of  the  land.  Two  questions  are  thus  presented  to 
the  attention  of  the  court:  First,  whether,  when  a  deed  is  in  form 
inter  partes,  and  it  contains  a  covenant  to  a  third  person,  such  third 
person  may  sue,  in  his  own  name,  for  a  breach  of  such  particula'-  cov- 
enant, it  appearing  in  the  instrument  to  have  been  the  intention  to 
confer  such  right;  and,  second,  whether  such  covenant  exists,  ind 
such  intention  appears  in  the  present  instrument. 

I  begin  with  the  first  of  these  propositions. 

An  examination  of  the  authorities  upon  the  subject  will  show  that 
the  rule  is  conclusively  settled :  that  the  naked  fact  that  in  a  deed  inter 
partes  there  is  contained  a  covenant  with  a  third  person,  will  not  en- 
able such  person  to  sue  for  its  breach.     *     *     ♦ 

7  8  Part  of  the  opiiiiou  is  omitted. 


448  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

But  the  question  now  raised  has  a  further  reach.  The  counsel  of 
the  defendant  in  this  case  asks  the  court  to  say  that  the  deed  being 
inter  partes,  it  is  not  lawful  to  make  in  it  a  covenant  with. a  third 
person,  and  to  give,  by  an  expressed  intention  to  that  end,  a  right 
to  such  person  to  sue  for  its  breach.  No  precedent  has  been  cited,  or 
has  been  found,  which  will  stand  as  a  warrant  for  this  conten- 
tion.    *     *     * 

[The  court  held  that  a  covenant  could  so  be  made  with  a  third  per- 
son and  that  the  intent  to  make  the  covenant  in  question  with  the 
plaintiff  as  such  third  person  was  sufficiently  clearly  manifested  in  the 
deed  in  question.] 

But  again,  even  if  I  had  yielded  to  the  view  so  forcibly  presented  to 
the  consideration  of  the  court,  which  is  directly  opposite  to  that  just 
expressed,  and  had  concluded  that  the  plaintiff  was  not  a  party  to  this 
agreement,  so  as  to  give  him  an  ability,  as  such,  to  sue  upon  it,  yet, 
nevertheless,  I  should  have  thought  this  action  maintainable. 

This  result,  in  my  opinion,  would  have  been  justifiable,  on  the  ground 
that  the  covenant  forming  the  basis  of  this  suit  is,  in  law,  capable  of 
running  with  the  land,  and  that,  if  it  is  to  be  regarded,  technically, 
as  a  covenant  between  the  formal  parties  to  the  .deed,  it  has  passed, 
with  the  title  to  the  present  plaintiff. 

The  doctrine  with  respect  to  what  agreements  will  so  attach  to  real 
estate  as  to  devolve  with  the  title,  has  been  a  fruitful  subject  of  discus- 
sion in  the  text-books,  as  well  as  in  judicial  opinions,  and,  since 
the  various  resolutions  in  Spencer's  case,  has  given  rise  to  a  long  line 
of  decisions,  which,  it  must  be  admitted,  it  would  be  difficult  entirely 
to  harmonize.  But  I  think  this  discord  will  be  found,  upon  a  care- 
ful examination  of  the  authorities,  to  prevail  chiefly  in  other  branches 
of  the  subject  than  in  "the  one  in  which  the  present  case  is  to  be  classed. 
There  is  such  an  essential  difference,  in  social  effect,  between  permit- 
ting a  burthen  to  be  annexed  to  the  transfer  of  land,  and  the  giving 
to  a  benefit  such  a  quality,  that  the  subject  will  unavoidably  run  into 
obscurity,  unless  the  distinction  is  kept  constantly  in  view.  The  con- 
spicuous impolicy  of  allowing  land  to  be  trammeled  in  its  transfer,  to 
the  extent  that  previous  owners  may  choose  to  affect  it  by  their  con- 
tracts, was  pointed  out  and  condemned  in  the  case  of  Brewer  v. 
Marshall,  18  N.  J.  Eq.  337,  and  19  N.  J.  Eq.  537,  97  Am.  Dec.  679. 
In  that  case,  the  owner  of  real  estate  sold  a  portion  of  it,  and  cove- 
nanted with  the  purchaser  that  neither  he  nor  his  assigns  would  sell 
any  marl  from  off  the  residue  of  the  tract.  The  suit  was  against 
the  alienee  of  the  vendor,  and  the  decision  was  that  such  a  burthen 
would  not  follow  tlie  land  into  the  hands  of  such  alienee  of  the  cov- 
enantor. The  reason  assigned  for  this  conclusion  was  the  public 
inconvenience  that  would  result  if  incidents  could  be  annexed  to 
land  "as  multiform  and  as  innumerable  as  human  caprice."  But  when 
we  turn  our  attention  to  the  consideration  of  those  covenants,  which, 
instead  of  being  burthensome  to  the  land,  are  beneficial  to  it,  we  per- 


Ch.  4)  LEGAL    ENFORCEMENT   OF   COVENANTS  449 

ceive,  at  once,  that  such  objection  does  not  apply.  Such  covenants 
do  not  hinder,  but  rather  facilitate  the  transmission  of  land  from  hand 
to  hand,  and,  therefore,  with  respect  to  their  transmissibility,  the  ques- 
tion of  public  convenience  has  no  place.  This  being  the  case,  it  is  not 
easy  to  see  why  any  contract,  which  is  of  a  nature  to  attach  to  the 
land,  and  which  has  a  beneficial  tendency,  should  not  be  considered  as- 
signable, by  act  of  law,  as  against  the  covenantor,  with  the  title.  In 
every  instance  where  the  question,  in  this  form,  is  presented,  the 
suit  being  between  the  original  covenantor  and  the  alienee  of  the 
covenantee,  if  the  making  of  the  covenant  be  not  denied,  the  sole  point 
for  solution  would  seem  to  be  whether  such  covenant,  in  the  legal 
sense,  relates  to  or  concerns  the  land,  for,  if  not,  by  its  quality,  it 
passes  as  an  incident  to  the  property,  and  is  enforceable  in  the  name 
of  the  person  who  is  owner  at  the  time  of  its  breach.  When  the  cov- 
enantor has  been  the  party  sued,  and  the  covenant  admittedly  related 
to  the  land,  the  alienee  of  the  covenantee  being  the  plaintiff,  I  think 
no  considered  case  has  held  that  such  action  was  not  maintainable. 
In  the  present  case,  it  is  conceded  tliat  the  parties  to  the  suit  have  these 
characteristics,  but  it  is  denied  that  the  covenants  are  of  a  nature  to 
run  with  the  land. 

It  is  insisted  that  these  covenants  "relate  to  future  personal  acts 
and  omissions  of  the  covenantor ;  that  those  acts  are  not  to  be  done  or 
omitted  on  the  land  conveyed,  nor  on  any  other  land  of  the  grantor 
or  grantee;  nor  are  the  covenants  with  the  heirs  or  assigns  of  Hoag- 
land";  and,  in  support  of  these  objections,  tlie  first  and  second  resolu- 
tions in  Spencer's  case  are  cited. 

But  none  of  these  positions  are  sustained,  or  in  any  degree  sanc- 
tioned, by  the  authority  referred  to,  that  authority  being  merely  to 
the  effect  that  a  covenant  will  not  run  with  the  land  if  it  relates  to 
personalty,  or  if  it  be  merely  collateral  to  the  land.  But  I  fail  to  find 
that  Sir  Edward  Coke  says  anything  which  lends  the  slightest  counte- 
nance to  the  idea  that  the  covenant  is  not  transmissible  if  it  stipulates 
for  "the  future  personal  acts  and  omissions  of  the  covenantor,"  or  if 
"those  acts  are  not  to  be  done  or  omitted  on  the  land  conveyed,  or  on 
any  other  land  of  the  grantor  or  grantee."  It  is  true  that  he  does 
declare  that,  in  certain  cases,  the  burthen  of  a  covenant  will  not  fall 
on  the  assignee  of  the  covenantor,  unless  such  assignee  be  expressly 
referred  to  in  the  covenant ;  but  as  this  suit  is  against  the  covenantor 
himself,  and  not  against  his  assignee,  that  doctrine  can  serve  no  pur- 
pose in  this  connection. 

But  Lord  Coke,  in  this  case  cited,  states,  as  one  of  the  judicial 
resolutions,  that  a  covenant  will  not  run  with  the  land  "if  the  thing 
to  be  done  be  merely  collateral  to  the  land,  and  doth  not  touch  or 
concern  the  thing  demised  in  any  sort,"  and,  consequently,  the  inquiry 
is  presented  with  regard  to  the  nature  of  the  present  covenants  in 
relation  to  the  premises  conveyed ;  and  this  inquiry  has  been  pressed, 
Big. Rights — 29  , 


450  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

with  earnestness,  on  the  attention  of  the  court  in  the  brief  of  the  coun- 
sel of  the  defendant.  I  must  say,  however,  that  but  for  this  urgency,  it 
would  not  have  occurred  to  me  that  any  doubt  Qould  be  entertained  with 
respect  to  the  question,  I  understand  that  a  covenant  touches  and 
concerns  land  when  its  performance  confers  a  direct  benefit  on  the 
owner  of  land  by  reason  of  its  ownership ;  and,  tested  by  such  a  defini- 
tion, the  covenant  sued  on  has  such  a  capacity.  To  be  sure  of  this, 
we  have  but  to  turn  to  the  contract.  That  agreement  is  for  the  sale  and 
conveyance  of  the  premises  in  question,  which  are  described  as  a  lot 
upon  which  is  a  building,  adapted  to  the  business  of  banking,  in  the 
course  of  erection,  and  which,  it  is  stated,  the  defendant  is  to  complete, 
and  which  was  to  include  "a  counter  for  the  main  banking-room," 
which  "had  already  been  ordered"  by  him.  It  is  then  recited  that  the 
defendant  was  then  engaged  in  the  business  of  banking,  as  a  private 
banker,  in  Dover;  and  that  Hoagland,  the  covenantee  and  grantor 
of  the  plaintiff,  intended  to  associate  himself  with  other  persons  to 
organize  a  banking  association,  to  be  located  and  to  do  business  in 
Dover;  and  that  he  expected  to  convey  said  lot  of  land  and  banking- 
house  to  said  bank  association ;  and  that  it  was  a  part  of  the  considera- 
tion of  the  sale  of  said  lot  and  banking-house,  that  the  said  defend- 
ant would  withdraw  from  the  business  of  banking,  and  would  not 
engage  in  the  same,  at  any  time  within  ten  years,  in  the  borough  of 
Dover.  After  this,  follow  the  covenants,  which  lay  the  ground  of 
suit,  to  the  purport  that  the  defendant,  "as  soon  as  the  new  banking 
company  or  association,  so  expected  to  be  organized,  or  any  banking" 
company  to  whom  the  said  Hoagland,  his  heirs  or  assigns,  may  here- 
after lease,  convey  or  assign  said  premises  or  banking-house,  or  any 
part  of  the  same,  shall  commence  the  business  of  banking  therein,  then 
and  from  thenceforth,"  the  said  defendant  "shall  withdraw,  in  good 
faith  as  soon  as  practicable,  from  the  business  of  banking,"  &c.  To 
this,  there  is  superadded  a  stipulation  that  it  is  understood  and  agreed 
that  the  foregoing  covenant  is  made  for  the  benefit  of  said  Hoagland, 
as  the  owner  of  the  land  to  be  conveyed,  and  is  to  attach  to  and  run 
with  the  same. 

In  view  of  these  stipulations  and  recitals,  it  is  undeniably  clear  that 
the  parties  to  this  contract  thought  that  the  covenant  in  question  was 
one  which  would  appertain  to  and  benefit,  not  merely  the  person  of 
the  grantee,  bufthe  land  itself,  which  was  to  become  his  by  a  convey- 
ance. Indeed,  it  was  made  such  an  appurtenance  to  the  property  that 
it  was  to  have  no  effect  until  the  business  of  banking  was  commenced 
upon  these  particular  premises.  Now,  while  it  is  plain  that  a  mere 
personal  covenant  cannot,  by  the  agreement  of  parties,  have  its  nature 
so  altered  as  to  make  it  transmissible  with  land,  nevertheless  when 
the  question  is  whether  the  given  covenant  does  concern  certain  prem- 
ises, the  fact  that  such  parties  considered  it  to  have  such  quality, 
should  be  potent  in  a  decision  of  the  inquiry.  Since  these  parties  most 
manifestly  have  thought  that  the   stipulation   in  question  gave  addi- 


Ch.  4)  LEGAL    ENFOKCEMEXT   OF    COVENANTS  45l 

lional  value  to  tlie  property,  why,  and  on  what  ground,  should  the 
court  declare  that  such  was  not  the  case?  Nor  is  it  perceived  that 
there  is  any  force  in  the  suggestion  that  this  covenant  would  affect, 
not  only  the  business  done  upon  these  particular  premises,  but  any 
other  banking  business  that  might  be  carried  on  in  the  vicinity,  for  the 
answer  to  such  objection  is,  that  such  incidental  effects  are  common 
to  all  agreements  that  in  any  wise  regulate  the  dealings  of  men ;  and 
that  the  rule  of  law  requiring  the  covenant  to  touch  or  concern  the 
land,  does  not  require  that  it  shall  touch  or  concern  nothing  else.  In 
the  present  instance,  this  covenant  will  have  an  immediate,  permanent 
and  beneficial  eft'ect  upon  the  use  to  which  the  land  is  to  be  put,  and 
that  is  sufficient  to  annex  it  to  the  title.  To  apprehend  how  closely 
this  stipulation  is  related  to  these  premises,  we  have  but  to  observe 
that  in  case  of  its  breach,  the  party  directly,  and  for  aught  that  the 
court  can  know,  exclusively  injured,  will  be  the  owner  for  the  prop- 
erty at  the  time  such  breach  shall  occur.  There  is  nothing  in  the 
pleadings  to  show  that,  upon  such  violation  of  this  agreement,  the 
original  covenantee,  or  any  other  person  but  the  plaintiff",  has  sus- 
tained, or  can  sustain,  the  least  inconvenience  or  injury.  And,  finally 
it  should  be  observed,  that  under  the  circumstances  of  this  case,  it  is 
necessary  to  hold  that  tlie  covenant  under  consideration,  has  capacity 
to  run  with  the  land,  in  order  to  give  damages  to  the  only  party  actual- 
ly grieved  by  its  nonperformance. 

This  conclusion  is,  I  tliink,  amply  sustained  by  the  decisions.  It 
is  not  necessary  to  review  them.  The  following  seem  to  me  directly  to 
the  point:  The  Prior's  case,  reported  in  the  seventh  resolution  in 
Spencer's  case,  1  Smith's  Lead.  Cas.  118;  Vyvyan  v.  Arthru's  Adm'rs, 
1  Barn.  &  Cress.  410;  Vernon  v.  Smith,  5  B.  &  Aid.  1 ;  Mayor  of  Con- 
gleton,  10  East  130;  Norman  v.  Wells,  17  Wend.  (N.  Y.)  137;  1 
Smith's  Lead.  Cas.  142. 

Having  carefully  examined  the  cases  cited  in  the  brief  of  the  coun- 
sel of  the  defendant,  I  shall  dismiss  them  with  the  observation  that  they 
seem  to  me  plainly  to  be  covenants  relating  to  personalty,  or  covenants 
entirely  collateral  to  the  land,  or  cases  pertaining  to  the  question  when 
covenants  will  pass  as  a  burthen  with  the  title. 

Another  objection  taken  to  this  suit  is,  that  the  agreement  in  ques- 
tion, and  every  part  of  it,  was  prospective  and  executory,  and  at  the 
time  it  was  entered  into,  no  title  to  the  lands  existed,  or  was  trans- 
ferred to  Hoagland,  the  covenantee. 

But  I  find  no  autliority  for  this  proposition.  The  adjudications  ap- 
pear, on  the  contrary,  to  show,  very  plainly  that  when  a  covenant  ben- 
eficial to  land  is  made,  it  is  not  essential  to  its  devolution  with  the 
title  that  the  covenantee  should  have  title  to  the  land  to  which  it 
relates,  or  that  the  estate  should  have  come  from  the  covenantor,  or 
should  have  passed  from  him,  eo  instanti,  with  the  inception  of  the 
covenant.  When,  therefore,  the  covenantee  in  this,  case  became  vest- 
ed with  the  title,  the  covenant,  as  it  touches  and  concerned  the  land, 


452  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

became  an  incident  to  such  land,  and  as  such,  passed  with  it,  upon  con- 
veyance, by  act  and  operation  of  law. 

On  the  one  or  other  of  these  grounds,  the  declaration,  in  my  opin- 
ion, must  be  upheld.^® 


GILMER  V.  MOBILE  &  M.  RY.  CO. 

(Supreme  Court  of  Alabama,  1S85.     79  Ala.  569,  58  Am.  Rep.  623.) 

This  action  was  brought  by  George  N.  Gilmer,  against  the  Mobile  & 
Montgomery  Railway  Company,  as  the  assignee  and  successor  of  the 
Alabama  &  Florida  Railroad  Company,  to  recover  damages  for  alleg- 
ed breaches  of  covenant;  and  was  commenced  on  the  30th  March, 
1885.  The  covenants  alleged  to  have  been  broken  were  contained  in  a 
written  instrument  under  seal,  dated  March  7th,  1868,  by. which  the 
Alabama  &  Florida  Railroad  Company,  "in  consideration,"  as  therein 
recited,  "of  George  N.  Gilmer  having  sold  and  conveyed  to  said  rail- 
road company,  for  the  sum  of  one  dollar,  the  right  of  way  and  the  land 
for  fifty  feet  on  each  side  of  the  centre  line  of  said  railroad  extending 
through  his  plantation,  and  certain  other  privileges  mentioned  in  the 
deed  of  conveyance  given  by  said  Gilmer,"  agreed  and  bound  itself  as 
follows:  "The  Alabama  &  Florida  Railroad  Company  will  stop  the 
passenger  and  freight  trains  (when  proper  signals  are  given)  at  some 
convenient  point  opposite  the  house  of  said  Gilmer,  and  receive  and 
discharge  (without  extra  charge)  passengers  and  the  sacked  and  baled 
produce  of  the  farm,  or  other  freight  or  produce  of  said  farm,  when 
the  receiving  and  delivery  of  said  other  freight  and  produce  can  be 
done  without  seriously  interfering  with  the  running  of  schedule.  The 
further  privilege  is  given  said  Gilmer  to  cultivate  such  parts  of  said 
right  of  way  not  used  by  said  railroad  company,  so  long  as  the  same 
may  not  interfere  with  the  wants  and  requirements  of  said  railroad 
company ;  and  further,  if  at  any  time  the  said  railroad  company  should 
erect  a  depot  on  said  right  of  way,  the  sale  of  ardent  spirits  will  be 
strictly  prohibited."  The  complaint  claimed  that  these  stipulations 
were  covenants  running  with  the  land,  and  were  binding  on  the  defend- 
ant as  the  assignee  and  successor  of  said  Alabama  &  Florida  Railroad 
Company ;  and  alleged  specific  breaches  of  each.  The  court  sustained 
a  demurrer  to  the  complaint,  on  the  ground  that  the  covenants  were 
not  binding  on  the  defendant  as  assignee;  and  the  judgment  on  the 
demurrers  is  now  assigned  as  error, 

T»A.  granted  to  a  railroad  a  right  of  way  over  his  land,  the  railroad 
covenanting  to  maintain  its  roadbed  at  a  certain  height.  Held,  A.'s  succes- 
sor in  title  may  maiutain  action  against  the  railroad  for  breach  of  the 
covenant.  St.  Louis,  I.  M.  &  S.  Ry.  v.  O'Baiigh,  49  Ark.  418,  5  S.  W.  711 
(1887). 

So  as  to  a  covenant  by  the  grantee  of  a  right  of  way  to  stop  its  trains  at 
a  designated  point.  Ford  v.  Oregon  Electric  Ry.  Co.,  GO  Or.  27b,  117  1'a.c. 
809,  36  L.  R.  A.  (N.  S.)  358.  Ann.  Cas.  1914A,  280  (1911). 


Ch.  4)  LEGAL    ENFORCEMENT   OF   COVENANTS  453 

SOMERVILLE,  T.*°  The  action  is  one  at  law  for  the  breach  of  cer- 
tain covenants  entered  into  with  the  plaintiff  by  the  Alabama  &  Florida 
Railroad  Company,  a  body  corporate,  from  which  the  defendant  de- 
rived title,  as  assignee,  to  a  strip  of  land,  including  the  right  of  way, 
through  the  farm  of  the  plaintiff,  situated  in  the  county  of  Lowndes. 
In  March,  1868,  the  appellant,  who  was  plaintiff  in  the  court  below, 
conveyed  to  the  said  assignor  of  defendant  this  right  of  way  and  land, 
extending  fifty  feet  on  each  side  of  the  center  line  of  the  railroad  track. 
In  consideration  of  this  grant,  the  said  Alabama  &  Florida  Railroad 
Company  agreed  in  substance,  by  a  separate  instrument,  to  establish 
what  we  may  briefly  denominate  a  flag-station  on  said  land,  at  a  con- 
venient point  adjacent  to  the  plaintiff's  house,  where  both  passenger 
and  freight  trains  would  stop,  upon  the  giving  of  proper  and  usual  sig- 
nals, for  the  transportation  of  passengers  and  certain  kinds  of  produce. 
The  plaintiff  was  to  have  the  right  to  cultivate  so  much  of  thfs  right 
of  way  as  may  not.  be  needed  for  use  by  the  railroad,  and  so  long  as 
such  cultivation  did  not  interfere  with  its  wants  and  requirements. 
It  was  further  stipulated  that,  in  the  event  of  a  depot  being  erected 
on  the  premises,  the  sale  of  ardent  spirits  would  be  strictly  prohibited. 

It  is  averred  that  the  defendant  corporation  derived  title  by  succes- 
sion from  the  original  vendee  and  covenantor,  with  full  knowledge  of 
the  obligations  growing  out  of  the  contract. 

The  Circuit  Court  sustained  a  demurrer  to  the  complaint,  and  dis- 
missed the  action,  on  plaintift''s  refusal  to  amend. 

There  is  an  agreement  of  counsel  waiving  so  much  of  the  demurrer 
as  raises  any  question  touching  the  plaintiff's  right  to  bring  the  action 
in  his  name,  if  it  would  lie  at  all  upon  the  facts  stated.  The  consider- 
ation of  this  point  we,  therefore,  pretermit,  assuming  that  the  action 
was  properly  brought  in  the  name  of  the  plaintiff  as  husband,  for  the 
use  of  the  wife. 

The  question  for  decision  is,  whether  the  covenants  in  question,  or 
either  of  them,  so  run  with  the  land,  as  to  be  of  binding  obligation  at 
law  upon  the  defendant,  as  the  assignee  of  the  covenantor. 

A  covenant  is  said  "to  run  with  land"  when  the  liability  to  perform 
it,  on  the  one  hand,  or  the  right  to  enforce  it,  on  the  other,  passes  to 
the  vendee,  or  other  assignee  of  the  land.  Such  covenant  must  relate 
to,  or,  as  is  more  commonly  said,  "touch  and  concern  the  land,"  and 
not  as  merely  collateral  to  it,  in  order  that  the  assignee  of  the  land  may 
be  charged  with  their  benefit  or  burden.  Spencer's  Case,  1  Smith, 
Lead.  Cas.  27.  They  are  often  called  real  contracts,  because  they  are 
annexed  or  inhere  to  the  realty  as  part  and  parcel  of  it,  and  "pass  from 
hand  to  hand  with  the  interest  in  the  realty  they  are  annexed' to."  1 
Addison  Contr.  §  430.  And  no  doubt  seems  to  exist  as  to  the  rule, 
that  covenants  may  run  with  incorporeal,  as  well  as  with  corporeal 
hereditaments,  as  in  the  case  of  tithes  and  rent-charges,  which  savor 

••Part  of  tbe  opinion  Is  omitted. 


454  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

of  the  realty,  because  they  are  carved  out  of  and  charged  on  it.  2 
Sugden  Vend.  482.  It  is  impossible  to  lay  down  any  fixed  rule  by 
which  to  distinguish  in  all  cases  real  covenants,  which  run  with  land. 
and  are  binding  as  such  on  heirs,  devisees,  and  assignees,  from  those 
which  are  merely  personal,  and  are  binding  only  on  the  covenantor  and 
his  personal  representative.    The  subject  is  one  full  of  intricate  leani- 

'  ing,  and  the  decisions  of  the  courts  touching  it  are  greatly  conflicting, 
and  far  from  satisfactory.  Among  those,  however,  which  have  been 
decided  to  follow  the  realty  into  the  hands  of  an  assignee,  are  cove- 
nants of  warranty  and  for  quiet  enjoyment,  covenants  by  tenants  to 
pay  rent,  to  repair,  maintain  fences,  reside  on  the  premises,  or  culti- 
vate the  demised  lands  in  a  particular  manner ;  not  to  carry  on  a  par- 
ticular trade  on  the  premises  leased  or  purchased ;  not  to  build  on  ad- 
jacent premises,  and  many  others  of  an  analogous  character.  Among 
those  adjudged  to  be  personal,  and  not  therefore  to  touch  or  concern 
the  land,  are  covenants  made  by  owners  of  land  between  whom  and  the 
covenantee  there  is  no  privity  or  title  or  estate ;  a  covenant  not  to  hire 
persons  of  a  certain  description  to  work  in  a  mill;  or  a  covenant  with 
a  stranger  not  to  permit  a  grist-mill  to  be  erected  on  the  owner's  prem- 
ises ;  a  covenant  by  the  vendor  of  lands  not  to  permit  marl  to  be  sold 
from  adjoining  lands ;  by  a  lessee  of  a  house  to  pay  so  much  for  every 
tun  of  wine  sold  in  the  house;  or  to  buy  all  beer  used  by  him  from  his 
lessors  or  from  his  successors  in  trade.  Law  Real  Property  (Boone), 
§  317;  1  Addison  Contr.  §  436;  2  Greenl.  Ev.  §  240;  1  Parsons'  Contr. 
231-233.    *    *    * 

A  proper  application  of  these  principles  leads  us  to  the  conclusion, 
that  the  condition  assumed  by  the  Alabama  and  Florida  Railroad  Com- 

•  pany,  the  defendant's  assignor,  by  which  it  was  agreed  to  establish  a 
"flag-station"  on  the  road  adjacent  to  plaintiff's  house,  and  to  permit 
plaintiff  to  cultivate  the  land  on  which  the  right  of  way  was  granted, 
imposed  a  burden  on  the  land  itself,  and  was  not  a  mere  personal  cov- 
enant. It  touched  and  concerned  the  land  itself,  and  was  not  collat- 
eral to  it,  because  it  was  to  be  performed  on  it,  and  affected  the  val- 
ue of  the  adjacent  land  of  the  grantor,  being  greatly  beneficial  tp  it; 
and  was  in  the  nature  of  compensation  by  way  of  rent  for  the  land 
conveyed,  no  other  consideration  having  been  paid  therefor  than  that 
which  was  confessedly  nominal.  1  Smith,  Lead.  Cas.  22-27,  and  note, 
with  cases  cited.  Its  performance  or  non-performance,  also,  affected 
the  mode  ol  enjoyment  of  the  granted  premises,  and  their  value  or 
quality,  so  as  to  render  the  title  acquired  by  the  vendee  a  subordinate 
one ;  and  this  is  one  of  the  tests  by  which  to  decide  whether  the  cove- 
nant is%nherent  in  the  land  itself.  1  Addison  on  Contracts,  §  435.  In 
other  words,  the  covenant  of  the  vendee  "qualified  the  estate  which  he 
took,  and  attached  itself  to  that  estate."  Atlantic  Dock  Co.  v.  Leavitt, 
54  N.  Y.  35,  s.  c.  13  Am.  Rep.  556.    *    *    * 

The  thing  to  be  done  by  the  covenantor  in  this  case  related  to  the 
land,  and,  being  annexed  to  it,  the  assignee,  by  accepting  possession 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  455 

of  the  land,  became  bound  by  the  covenant,  as  one  running  with  the 
land,  without  being  named  in  the  agreement.  Fulton  v.  Stuart,  supra ; 
Taylor  on  Landlord  &  Tenant,  §  437;  Spencer's  Case,  above  cited; 
Morse  v.  Aldrich,  19  Pick.  (iMass.)  449 ;  1  Add.  Contracts,  Morgan's 
ed.  §  455. 

The  court  below  erred  in  sustaining  the  demurrer  to  the  complaint; 
and  the  judgment  must  be  reversed,  and  the  cause  remanded.^ ^ 


ATLANTA,  K.  &  N.  RY.  CO.  v.  McKINNEY. 

(Supreme  Court  of  Georgia,   1906.     124   Ga.  929,   5:^,   S.   E.   701,  6  L.   R.   A. 
[N.  S.]   436,  110  Am.   St.  Rep.  215.) 

McKinney  brought  suit  against  the  Atlanta,  Knoxville  &  Northern 
Railway  Company,  and  alleged:  On  September  13,  1886,  Andrew 
W.  Green  conveyed  to  petitioner  the  exclusive  right  to  the  use  and 
control  of  all  the  springs  and  branches  upon  a  described  lot  of  land 
in  Fannin  county,  for  the  purpose  of  being  used  on  an  adjacent  lot 
of  land.  On  November  12,  1888,  petitioner  conveyed  to  the  Marietta 
&  North  Georgia  Railroad  Company  the  right  to  the  use  of  water 
from  the  branches  and  springs  on  the  said  lot  of  land,  for  the  pur- 
pose of  supplying  its  water  tank  at  Blue  Ridge,  Ga.,  "in  consideration 
of  the  fact  that  said  Marietta  &  North  Georgia  Railroad  Company 
shall  carry  and  convey  sufificient  water  to  the  residence  of  said  Mc- 
Kinney for  the  ample  use  and  accommodation  of  said  residence  and 
its  occupants."  It  is  further  alleged  that  the  Atlanta,  Knoxville  & 
Northern  Railway  Company  purchased  all  the  property,  rights,  and 
franchises  of  the  Marietta  &  North  Georgia  Railroad  Company 
at  a  receiver's  sale,  and  became  thereby  bound  by  all  the  conditions  of 
the  above-described  deed,  and  that  for  more  than  four  years  and  ever 
since  the  purchase  of  the  Marietta  &  North  Georgia  Railroad  the  de- 
fendant has  been  continuously  using  the  water  conveyed  in  the  above- 
described  deed,  and  that  neither  the  defendant  nor  its  assignor  ever 
carried  water  to  the  residence  of  petitioner.  Petitioner  claimed,  as 
damages  for  the  breach  of  the  covenant,  $500  as  the  cost  of  conveying 
the  water  to  his  residence  as  contemplated  in  the  deed,  and  the  value 
of  the  use  of  the  water  at  the  rate  of  $25  per  year  since  November 
12,  1888,  the  date  of  the  covenant.  The  defendant  demurred  generally 
to  the   petition,   and  specially  to  that  portion  seeking  damages   for 

siAcc:  Parrott  v.  Atlactic  &  N.  C.  R.  Co.,  165  N.  C.  295,  81  S.  E.  348, 
Ann.  Cas.  1915D.  265   (1914). 

A.  owned  a  mill,  a  dam,  and  a  water  power.  He  conveyed  to  X.  the  mill 
and  part  of  the  water  power,  and  covenanted  to  keep  the  dam  in  repair,  so 
as  to  enable  X.,  his  heirs  and  assigns,  to  use  the  power  so  granted.  A.'s 
land  and  dam  came  to  B..  and  X.'s  mill  and  power  rights  to  Y.  Held,  Y. 
may  maintain  an  action  against  B.  for  failure  to  repair  the  dam  as  covenant- 
ed. Fitch  v.  Johnson,  104  111.  Ill  (1SS2).  See  Morse  v.  Aldrich,  ante,  p. 
429 ;   Nye  v.  Hoyle,  120  N.  Y.  195,  24  N.  E.  1  (1S90). 


456  RIGHTS  IN  THE  LAND   OF  ANOTHER  (Part  2 

the  cost  of  conveying  the  water  to  the  petitioner's  residence.  The 
special  demurrer  was  sustained,  and  tlie  general  demurrer  overruled. 
To  the  judgment  overruling  the  general  demurrer  the  defendant  ex- 
cepted. 

Cobb,  P.  J.  (after  stating  the  foregoing  facts.) ^^  The  right  of  ac- 
tion of  the  petitioner  depends  upon  whether  or  not  the  covenant  to 
convey  water  to  his  residence  is  a  covenant  running  with  the  land. 
If  it  is  a  real  covenant,  he  may  recover  for  its  breach  against  the  as- 
signee of  the  covenantor.  If  it  is  only  a  collateral  or  personal  cove- 
nant, he  has  no  cause  of  action.  The  determination  of  a  question  of 
this  character  is  usually  one  of  some  difficulty.  *  *  *  These  defi- 
nitions are  founded  directly  upon  Spencer's  Case,  5  Coke,  16,  1  Smith's 
Leading  Cases  (9th  Ed.)  174,  or  upon  authorities  derived  therefrom. 
The  rule  as  there  laid  down  is  as  follows :  "When  the  covenant  ex- 
tends to  a  thing  in  esse,  parcel  of  the  demise,  the  thing  to  be  done 
by  force  of  the  covenant  is  quodammodo  annexed  and  appurtenant  to 
the  thing  demised,  and  shall  go  with  the  land  and  shall  bind  the  as- 
signee although  he  be  not  bound  by  express  words;  but  when  the 
covenant  extends  to  a  thing  which  is  not  in  being  >at  the  time  the 
demise  is  made,  it  cannot  be  appurtenant  or  annexed  to  the  thing 
which  hath  no  being."  In  the  case  of  Atlanta  Con.  St.  Ry.  v.  Jack- 
son, 108  Ga.  638,  34  S.  E.  184,  Mr.  Chief  Justice  Simmons  said :  "To 
constitute  a  covenant  running  with  the  land,  the  covenant  'must  have 
relation  to  the  interest  or  estate  granted,  and  the  act  to  be  done  must 
concern  the  interest  created  or  conveyed.'  1  Ballard,  Real  Prop.  § 
491.  In  2  Kerr  on  Real  Prop.  §  1218,  it  is  said:  'Of  the  covenants 
in  a  lease,  some  run  with  the  land,  while  others  are  binding  only  upon 
the  person.  *  *  *  j^  order  that  it  may  run  with  the  land,  its 
performance  or  nonperformance  must  affect  the  nature,  quality,  or 
value  of  the  property  demised,  independent  of  collateral  circum- 
stances, or  it  must  affect  the  mode  of  enjoyment,  and  there  must  be 
a  privity  between  the  contracting  parties.'  " 

In  the  present  case  the  thing  demised  was  the  right  to  the  use  of 
water  from  springs  and  branches  upon  a  certain  lot  of  land  for  the 
purpose  of  supplying  a  water  tank.  The  covenant,  the  breach  of 
which  is  alleged,  was  the  agreement  to  convey  a  part  of  the  water  to 
the  residence  of  the  plaintiff.  Under  the  rules  above  laid  down,  we 
think  it  is  clear  that  this  is  a  ccTvenant  running  with  the  land.  It 
measures  up  to  every  test  suggested.  It  not  only  relates  to  the  interest 
or  estate  conveyed,  it  is  inseparably  annexed  to  and  a  part  of  it,  a 
charge  upon  it.  It  affects  the  nature,  quality,  and  value  of  the  thing 
demised.  It  qualifies  its  mode  of  enjoyment;  it  restricts  its  use.  It 
is  inextricably  woven  into  the  manner  in  which  the  grantee  shall  enjoy 
the  thing  demised.  "A  covenant  by  a  lessor  to  supply  houses  with 
water  at  a  rate  therein  mentioned  for  each  house  also  runs  with  the 

•  2  Part  of  the  opinion  is  omitted. 


Ch.  4)  LEGAL    ENFORCEMENT    OF   COVENANTS  457 

land,  and  for  a  breach  of  it  the  assignee  of  the  lessee  may  maintain 
an  action  against  the  reversioner."  1  Taylor's  Land.  &  Tenant,  330, 
citing  Jourdain  v.  Wilson,  4  B.  &  A.  266.  *  *  *  in  the  case  of 
Cooke  V.  Chilcott,  L.  R.  3  Ch.  Div.  694,  it  is  said:  "A  purchaser  of  a 
piece  of  land  with  a  well  or  spring  upon  it  covenanted  with  the  ven- 
dor, who  retained  land  adjoining  intended  to  be  disposed  of  for  build- 
ing sites,  to  erect  pump  or  reservoir,  and  to  supply  water  from  the  well 
to  all  houses  built  on  the  vendor's  land.  Held,  that  both  the  benefit 
and  burden  of  the  covenant  ran  with  the  land,  and  that  the  case  was 
not. within  the  second  resolution  of  Spencer's  Case."  See,  also,  Sha- 
ber  V.  St.  Paul  Water  Co.,  30  Minn.  179,  14  N.  W.  874.     *     *     * 

Anotlier  contention  of  the  defendant  was  that  the  language  of  the 
instrument  should  not  be  construed  as  a  covenant  to  supply  to  the 
plaintiflF's  residence  water  derived  from  the  water  rights  conveyed  to 
the  defendant,  but  that,  under  the  instrument,  the  defendant  might 
supply  water  from  any  locality  whatever.  If  this  construction  were 
correct,  the  covenant  would  undoubtedly  be  collateral,  personal,  and 
independent  of  the  land ;  but  we  do  not  think  it  a  fair  construction  of 
the  deed.  "Covenants  are  to  be  so  construed  as  to  carry  into  effect 
the  intention  of  the  parties,  which  is  to  be  collected  from  the  whole  in- 
strunient  and  from  the  circumstances  surrounding  its  execution."  11 
Cyc.  1051,  and  citations;  Peden  v.  Chicago  Ry.  Co.,  73  Iowa,  579, 
35  N.  W.  424,  5  Am.  St.  Rep.  680.  The  covenant  in  question  reads : 
"The  said  M.  McKinney,  for  and  in  consideration  of  the  fact  that 
said  Marietta  &  North  Georgia  Railway  Company  shall  carry  and 
convey  sufficient  water  to  the  residence  of  the  said  McKinney  for  the 
ample  use  and  accommodation  of  the  said  residence  and  its  occupants, 
then  and  in  that  event  the  said  M.  McKinney  grants,  sells,  and  conveys 
unto  said  Marietta  &  North  Georgia  Railway  Company  the  right  to 
the  free  and  unrestricted  use  of  water  for  the  supplying  of  the  railroad 
water-tank  at  Blue  Ridge,  in  said  county,  with  ample  and  sufficient 
water  for  their  use  from  all  the  springs  and  branches  for  the  use  of 
said  company,"  etc.  It  seems  to  us  apparent  that  it  was  the  intention  of 
the  parties  that  the  water  conveyed  to  the  plaintiff's  residence  should 
be  from  the  springs  and  branches  which  were  the  subject-matter  of  the 
agreement.  The  grantor  reserves  what  might  be  said  to  be  the 
first  lien  upon  the  water,  and  it  is  only  after  the  needs  of  his  residence 
are  satisfied  that  the  defendant  is  given  the  unrestricted  use  of  the 
branches  and  springs.  It  would  be  unreasonable  to  hold  that  the 
intention  of  the  parties  expressed  in  this  instrument  was  that  the 
water  furnished  to  the  plaintiff  was  to  be  derived  from  another  locality, 
and  conveyed  by  separate  machinery  to  the  plaintiff's  residence.     *     * 

Judgment  affirmed.     All  the  Justices  concur.^^ 

8  3  See  Stanislaus  Water  Co.  v.  Bachman,  152  Cal.  716,  93  Pac.  S5S,  15  L. 
It.  A.  (N.  S.)  359  (1908);  Hottell  v.  Farmers'  Protective  Ass'n,  25  Colo.  67, 
53  Pac.  327,  71  Am.  St.  Rep.  109  (189S) ;  Farmers'  High  Line  Caual  & 
Reservoir  Co.  v.  Xe\v  Hampshire  Real  Estate  Co.,  40  Colo.  407,  92  Pac.  290 
(1907);  Lydick  v.  Baltimore  &  O.  R.  Co.,  17  W.  Va.  427  (ItJbO). 


458  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 


MILLER  V.  CLARY  et  al. 

(Court  of  Appeals  of  New  York,  1913.     210  N.  Y.  127,  103  N.  E.  1114,  L.  R. 
A.   191SE,  222,  Ann.  Cas.  1915B,  872.) 

This  is  an  action  to  construe  a  deed  granting  an  easement,  and  to 
enforce  certain  covenants  relating  to  the  easement.  In  and  prior  to 
the  year  1872,  the  Phoenix  Mills  was  seised  in  fee  and  possessed  of  cer- 
tain lands  on  the  Seneca  river  in  the  village  of  Seneca  Falls.  There 
was  erected  on  such  lands  a  flouring  mill  operated  by  water  drawn 
from  the  river.  The  land  to  the  east  of  the  mill  property  and  lower 
down  the  river  was  also  owned  by  the  Phoenix  Mills.  This  land,  in 
the  year  1872,  the  mill  company  divided  ihto  four  lots,  and  on  May 
18th  of  that  year  conveyed  the  easterly  lot,  which  was  taken  off  the 
easterly  end  of  the  land,  to  one  Zalinski.  The  deed,  after  describing 
the  property  conveyed,  continued  as  follows :  "Together  with  suffi- 
cient power  (subject  to  the  elements)  from  a  wheel  in  the  Old  Stone 
Mills  or  Jewett  Building  to  turn  a  shaft  and  propel  machinery  in  the 
basement  of  any  building  to  be  erected  on  the  premises  hereby  convey- 
ed not  requiring  more  than  fifteen  horse  power,  provided,  however, 
that  such  machinery  shall  be  confined  to  the  basement  stories  of  such 
building  and  shall  not  be  used  elsewhere  nor  shall  said  shaft  ever  be 
used  for  any  other  purpose  than  operating  machinery  in  said  basement ; 
and  provided  also  that  said  shaft  shall  be  put  up  at  the  sole  expense 
of  said  party  of  the  second  part  and  shall  be  properly  connected  with 
the  shaft  running  from  said  mill  and  shall  be  made  and  put  up  in  a 
manner  to  be  approved  by  the  said  party  of  the  first  part,  and  said  shaft 
and  machinery  shall  at  all  times  be  kept  in  good  condition  by  said  party 
of  the  second  part  and  shall  be  operated  in  a  proper  and  economifcal 
manner,  and  said  power  is  to  be  used  in  common  with  all  other  per- 
sons who  shall  be  entitled  to  power  from  said  wheel."  Following  the 
clause  quoted,  the  deed  contained  certain  exceptions  and  reservations, 
and  then  the  following  covenant  on  the  part  of  the  gran1;or:  "Said 
party  of  the  first  part  shall  keep  said  wheel  in  said  mill  in  good  con- 
dition, and  operate  the  same  economically,  and  construct  and  maintain 
said  shaft  of  proper  dimensions  to  the  west  line  of  said  lot,  affording 
said  party  of  the  second  part  a  good  connection  therewith  at  his  west 
line." 

Subsequently,  in  the  same  year,  the  Phoenix  Mills  conveyed  to 
different  individuals  the  two  lots  to  the  west  of  the  Zalinski  lot,  and 
the  deed  in  each  instance  contained  practically  the  same  provisions 
as  the  Zalinski  deed,  except  that  the  grantee  agreed  to  construct  and 
maintain  the  shaft  to  transmit  power  over  the  land  conveyed  to  him 
to  the  adjoining  lots  on  the  east  thereof.  Still  later,  in  the  same  year, 
the  Phoenix  Mills  conveyed  the  fourth  lot,  which  adjoins  the  mill  prop- 
erty, to  a  fourth  person  by  deed  which  contained  practically  the  same 
clauses  as  the  Zalinski  deed.    Thereafter  the  Phoenix  Mills  for  a  time 


Ch.  4)  LEGAL    ENFORCEMENT   OF    COVENANTS  459 

transmitted  power  under  the  provisions  of  its  deeds  aforesaid  to  lots 
1,  2,  and  3.  No  power  was  transmitted  to  the  fourth  lot.  Since  about 
the  year  1890  no  power  has  been  transmitted  to  any  of  the  lots,  and 
the  appliances  for  conveying  the  power  have  been  destroyed  by  the 
elements  or  otherwise.  In  1873  the  Phoenix  Mills  conveyed  the  mill 
property  by  deed,  "excepting  and  reserving,  however,  all  such  rights 
and  privileges  as  have  been  conveyed  by  the  party  of  the  first  part 
to"  Zalinski  and  the  other  grantees  aforesaid.  Subsequently  the  prop- 
erty was  conveyed  to  the  defendants  Clary  by  deed,  containing  the 
same  exceptions  and  reservations. 

The  plaintiff  is,  and  for  several  years  has  been,  the  owner  of  all  four 
lots  to  the  east  o'f  the  mill  property  conveyed  to  Zalinski  et  al.  There 
is  now  upon  the  mill  property  an  electric  power  plant  operated  by  the 
defendant  the  Geneva-Seneca  Electric  Company  under  lease  from 
the  owners.  There  are  several  wheels  in  the  power  plant  which  are 
run  by  water  from  the  Seneca  river.  The  object  of  this  action  is  to 
secure  a  construction  of  the  covenants  and  stipulations  in  the  deeds  to 
Zalinski  and  others,  to  compel  the  defendants  Clary  to  keep  and  ob- 
serve such  covenants  and  stipulations,  and  to  require  said  defendants 
to  furnish  "power  at  the  plaintiff's  buildings  and  convey  such  power 
at  their  own  cost  and  expense,  and  by  their  own  appliances,  to  the 
plaintiff's  buildings."  The  judgment  was  in  favor  of  the  plaintiff  on 
all  points. 

CuDDEBACK,  J-^*  (after  stating  the  facts  as  above).  There  can  be 
no  question  but  that  the  words,  "together  with  sufficient  power  (sub- 
ject to  the  elements)  from  a  wheel  in  the  Old  Stone  Mills  or  Jewett 
Building  to  turn  a  shaft  and  propel  machinery"  on  the  grantee's  prem- 
ises, contained  in  the  deeds  from  the  Phoenix  Mills  to  Zalinski  and 
others,  constituted  the  grant  of  an  easement,  nor  any  doubt  but  that 
the  privilege  granted  was  for  the  benefit  of  the  land  conveyed,  and 
au  easement  that  ran  with  the  land.  Nye  v.  Hoyle,  120  N.  Y.  195,  24 
N.  E.  1. 

The  question  arises  on  the  subsequent  covenant  to  transmit  the  pow- 
er, contained  in  the  following  provision :  "Said  party  of  the  first  part 
shall  keep  said  wheel  in  said  mill  in  good  condition  and  operate  the 
same  economically  and  construct  and  maintain  said  shaft  of  proper 
dimensions  to  the  west  line  of  said  lot,  affording  said  party  of  the  sec- 
ond part  a  good  connection  therewith  at  his  west  line." 

There  is  now  a  wheel  operated  in  the  defendants'  power  plant  which 
answers  to  the  language  of  the  deeds,  and,  therefore,  we  are  not  con- 
cerned here  with  the  covenant  of  the  grantor  to  keep  the  wheel  in 
good  condition  and  operate  the  same. 

But  there  is  no  shaft  or  other  contrivance  to  carry  power  from  the 
wheel  to  the  lands  conveyed.  By  the  judgment  appealed  from  it  is 
decreed  that  the  covenants  in  the  deed  of  the  Phoenix  Mills  to  the 

«*  I'urt  of  the  opiuiou  is  omitted. 


460  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

plaintiff's  predecessors  in  title,  whereby  the  grantor  undertook  to 
"construct  and  maintain  a  shaft  of  proper  dimensions  to  the  west  Ime 
of"  the  plaintiff's  land,  is  a  covenant  binding  on  the  defendants,  and 
the  judgment  orders  them  to  comply  with  and  fulfill  such  covenant  , 

The  covenant  to  construct  and  maintain  the  shaft  is  known  in  the 
law  as  an  affirmative  or  positive  covenant.  It  compels  the  covenantor 
to  submit,  not  merely  to  some  restriction  in  the  use  of  his  property, 
but  compels  him  to  do  an  act  thereon  for  the  benefit  of  the  owner  of 
the  dominant  estate. 

It  is  the  established  rule  in  England  that  such  a  covenant  does  not 
run  with  the  land,  and  cannot  be  enforced  against  a  subsequent  own- 
er of  the  servient  estate,  either  at  law  or  in  equity.  Haywood  v. 
Brunswick  Bldg.  Society,  8  O.  B.  Div.  403 ;  London  &  S.  W.  Ry.  Co. 
V.  Gomm,  20  Ch.  Div.  562 ;  Austerb'erry  v.  Corp.  of  Oldham,  29  Ch. 
Div.  750;  Halsbury,  Laws  of  England,  vol.  11,  pp.  237,  248.  There 
are,  however,  certain  exceptions  to  this  rule,  as  covenants  to  repair 
fences  on  boundary  lines;  to  repair  private  ways,  and  covenants  in 
leases.    Id. 

Some  of  the  courts  of  this  country  have  taken  a  different  view, 
notably  the  Massachusetts  Supreme  Court.  In  Whittenton  IMfg.  Co. 
V.  Staples,  164  Mass.  319,  41  N.  E.  441,  29  L.  R.  A.  500,  it  is  held  that 
a  stipulation  in  the  deed  of  a  mill  site  that  the  grantee  and  his  assigns 
shall  pay  one-fifth  of  the  damages  caused  by  flowage  from  a  dam  is  a 
covenant  running  with  the  land,  and  binds  the  grantee,  his  heirs  and 
assigns.  Pomeroy  in  his  work  on  Equity  Jurisprudence  takes  the  same 
vie^v*,  namely,  that  affirmative  covenants  may  be  enforced  in  equity, 
and  criticises  the  English  decisions.  3  Pomeroy,  Eq.  Jurisprudence 
(3d  Ed.)  §  1295.    *    *    * 

It  has  been  held  in  this  state  that  certain  positive  covenants,  which 
are  mainly  in  line  with  the  covenants  excepted  by  the  English  courts 
from  the  rule  adopted  there,  do  run  with  the  land.  As,  covenants  .to 
build  fences  along  boundary  lines  (Satterly  v.  Erie  R.  R.  Co.,  113  App. 
Div.  462,  99  N.  Y.  Supp.  309);  covenants  relating  to  party  walls 
(Crawford  v.  Krollpfeiffer,  195  N.  Y.  185,  88  N.  E.  29,  133  Am.  St. 
Rep.  783) ;  covenants  to  provide  railway  crossings  (Day  v.  N.  Y.  C. 
R.  R.  Co.,  31  Barb.  548;  Post  v.  West  Shore  R.  R.  Co.,  123  N.  Y.  580, 
26  N.  E.  7) ;  covenants  in  leases  to  pay  rent  or  repair  buildings  on  the 
demised  premises  (Allen  v.  Culver,  3  Denio,  284).  The  cases  cited 
from  the  reports  of  this  state  indicate  that  the  trend  of  opinion  is 
with  the  English  decisions. 

But  there  is  another  case  on  which  the  plaintiff  relies,  to  wit,  Den- 
man  v.  Prince,  40  Barb.  213.  In  Denman  v.  Prince  the  owner  of  lands 
on  which  was  situated  a  gristmill  and  a  sawmill  conveyed  the  gristmill 
to  the  plaintiff  Denman,  and  at  the  same  time  executed  a  separate 
agreement  under  seal,  granting  to  Denman  the  use  of  water  to  run  the 
gristmill,  and  covenanting  that  he  would  at  all  times  be  at  an^  equal  ex- 
pense in  keeping  up  and  repairing  the  dams  in  the  stream  from  which 


Ch.  4)  LEGAL    ENFOfiCEMENT   OF   COVENANTS  461 

the  water  was  obtained.  Later  on  he  conveyed  the  sawmill  to  the  de- 
fendants, subject  to  the  rights  and  privileges  previously  conveyed  to 
Denman.  Thereafter  the  plaintiff  repaired  the  dams,  and  the  suit  was 
to  recover  from  the  defendants  their  proportionate  part  of  the  ex- 
pense. The  court  held  that  the  covenant  to  share  in  the  costs  of  re- 
pair ran  with  the  land,  and  was  binding  on  the  defendants,  and,  fur- 
ther, that  the  parties  to  the  action  were  tenants  in  common  of  the  mill 
privilege,  and  were  jointly  using  the  same ;  therefore  the  defendants 
were  bound  to  contribute  to  the  expense  of  the  necessary  repairs  made 
to  the  dams.  The  decision  in  Denman  v.  Prince  is  entirely  in  harmony 
with  the  early  English  cases. 

In  Cooke  v.  Chilcott,  3  Ch.  Div.  694,  the  court  held  tliat  a  covenant 
by  a  grantee  to  erect  a  pump  and  reservoir  and  supply  water  to  all  the 
houses  built  on  the  vendor's  land  was  enforceable  by  an  injunction  re- 
straining the  defendants,  who  had  purchased  the  land  on  which  the 
pump  and  reservoir  were  located,  with  notice  of  the  covenant  to  re- 
frain from  allowing  the  work  of  pumping  to  be  unperformed.  The 
evil  and  lasting  effect  of  the  decision,  which  would  compel  all  per- 
sons who  might  thereafter  become  the  owViers  of  the  reservoir  to  for- 
ever pump  and  supply  water,  led  the  court  to  practically  overrule 
Cooke  V.  Chilcott,  and  announce  the  rule,  before  referred  to,  that  af- 
firmative covenants  do  not  run  with  the  land  and  cannot  be  enforced 
against  subsequent  purchasers,  either  at  law  or  in  equity.  Haywood  v. 
Brunswick  Bldg.  Society:  London  &  S.  W.  Ry.  Co.  v.  Gomm;  Aus- 
terberry  v.  Corp.  of  Oldham,  supra. 

Except  in  Gould  v.  Partridge,  52  App.  Div.  40,  64  N.  Y.  Supp. 
870,  which  involved  the  same  deeds  involved  in  this  action,  Denman 
V.  Prince  has  not  been  cited,  so  far  as  I  can  find,  as  an  authority  on  the 
proposition  that  a  positive  covenant  runs  with  the  land.  Covenants 
which  impose  charges  on  land  bind  the  assigns  of  the  covenantor  as 
equitable  obligations.  Trustees  of  Columbia  College  v.  Lynch,  70  N. 
Y.  440,  26  Am.  Rep.  615.  If,  under  the  circumstances  presented  by 
the  Denman  Case,  the  defendants  had  abandoned  their  sawmill  and  de- 
voted their  lands  to.  other  purposes,  it  would  not  have  been  equitable  to 
compel  them  thereafter  to  bear  the  burden  of  maintaining  the  dams 
in  order  to  provide  water  for  the  plaintiff's  gristmill.  However,  in 
Denman  v.  Prince  the. court  found  that  the  parties  to  the  action  were 
tenants  in  common  of  the  mill  privilege,  and  were  jointly  enjoying 
the  benefit  thereof.  That  may  serve  to  distinguish  the  case  from  the 
case  at  bar. 

I  think  the  rule  that  affirmative  covenants  accompanying  conveyanc- 
es of  land  are  not  enforceable  against  subsequent  owners  is  a  wise  o;ie. 
It  has  its  limitations,  as  has  been  seen,  and  may  require  further  limi- 
tation ;   but  the  present  case  is  one  in  which  the  rule  should  be  applied. 

The  plaintiff  here  has  the  right,  under  the  grant  of  the  Phoenix 
Mills,  to  take  power  from  a  wheel  in  the  defendants'  power  plant  when 
the  wheel  is  in  operation.    That  is  an  easement,  and  is  a  privilege  nee- 


462  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

essary  and  convenient  to  the  complete  enjoyment  of  the  plaintiff's  prop- 
erty, having  in  mind  the  purpose  for  which  it  was  conveyed.  But  it  is 
not  necessary,  or  even  convenient,  to  the  complete  enjoyment  of  the 
plaintiff's  property  that  the  defendants  should  ODnstruct  and  maintain 
the  shaft  by  which  the  power  is  transmitted.  That  work  the  plaintiff 
can  do  as  well  as  the  defendants,  and  for  the  purpose  of  performing 
it  may  enter  upon  the  defendants'  property.  The  only  question  is: 
Who  shall  bear  the  expense?  In  that  view,  the  covenant  to  construct 
and  maintain  the  shaft  was  the  personal  undertaking  of  the  original 
grantor,  and  does  not  run  with  the  land  or  create  an  equitable  liability 
on  the  part  of  the  defendants. 

I  recommend  that  the  judgment  appealed  from  be  modified  by  strik- 
ing out  the  provision  that  the  covenants  in  the  deeds  from  the  Phoenix 
Mills  to  Zalinski  and  others  to  construct  and  maintain  a  shaft  from 
the  wheels  in  the  defendants'  mill  to  the  plaintiff's  building  inured  to 
the  plaintiff's  benefit,  and  also  by  striking  out  the  provision  that  the 
defendants  comply  with  such  covenant,  and  by  inserting  a  direction 
that  defendants  permit  the  plaintiff  to  take  at  and  from  a  wheel  in 
their  mill,  when  the  wheel  is  in  operation,  the  amount  of  power  in 
the  judgment  mentioned,  and  that  the  judgment  as  thus  modified  be 
affirmed,  without  costs  in  this  court  to  either  party. 

CuLLEN,  C.  J.,  and  Werner,  Hiscock,  Chase,  Collin,  and  Ho- 
GAN,  JJ.,  concur. 

Judgment  accordingly.®' 


WIGGINS  FERRY  CO.  v.  OHIO  &  M.  RY.  CO. 

(Supreme  Court  of  Illinois,  1S79.     94  111.  S3.) 

[The  Wiggins  Ferry  Company  granted  to  the  Ohio  &  Mississippi 
Railroad  Company  the  right  to  build  and  maintain  upon  certain  de- 
scribed lands  of  the  grantor,  tracks,  warehouses,  and  other  structures 
to  be  used  for  railroad  purposes,  tenendum  so  long  as  used  for  railroad 
purposes.    The  consideration  was  $1.00  and  a  covenant  by  the  grantee 

85  In  Austerberry  v.  Oldham,  L,  R.  29  Ch.  Div.  750.  781  (1885),  Lindley, 
L.  J.,  said:  "Does  the  burden  of  this  covenant  run  with  the  land  so  as  to 
bind  the  defendants?  The  defendants  have  acquired  the  road  under  the 
trustees,  and  they  are  bound  by  such  covenant  as  runs  with  the  land.  Now 
we  come  to  face  the  difficulty;  does  a  covenant  to  repair^  all  this  road  run 
with  the  land — that  is,  does  the  burden  of  it  descend  upon  those  to  whom 
the  road  may  be  assigned  in  future?  "We  are  not  dealing  here  with  a  case 
of  landlord  and  tenant.  The  authorities  which  refer  to  that  class  of  cases 
have  little,  if  any,  bearing  upon  the  case  which  we  have  to  consider,  and 
I  am  not  prepared  to  say  that  any  covenant  which  imposes  a  burden  upon 
land  does  run  with  the  land,  unless  the  covenant  does,  upon  the  true  con- 
struction of  the  deed,  containing  the  covenant,  amount  to  either  a  grant  of 
an  easement,  or  a  rent  charge,  or  some  estate  or  interest  in  the  land.  A 
mere  covenant  to  repair,  or  to  do  something  of  that  kind,  does  not  seem 
to  me.  I  confess,  to  run  with  the  land  in  such  a  way  as  to  bind  those  wl\o 
may  acfiuire  it." 


Cb.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  463 

that  it  would  always  employ  the  Wiggins  Ferry  Co.  to  transport 
all  its  passengers,  freight  cars,  etc.,  across  the  Mississippi  river  to 
and  from  St.  Louis  and  Bloody  Island.  The  Ohio  &  Mississippi  Rail- 
way Company  later  succeeded  to  the  rights  of  the  Ohio  &  Missis- 
sippi Railroad  Company,  and  refused  to  employ  the  plaintiff  for  the 
specified  ferry  purposes.  This  action  is  brought  to  recover  damages 
resulting  from  the  refusal.] 

ScHOLFiELD,  J.^"  *  *  *  If  remains,  then,  only  to  inquire,  does 
the  performance  or  non-performance  of  this  covenant  affect  the  na- 
ture, quality  or  value  of  the  property  demised,  independent  of  col- 
lateral circumstances,  or  the  mode  of  its  enjoyment? 

It  is  not  shown  that  the  two  parcels  of  lands  in  which  this  easement 
is  granted  are  any  part  of  the  ferry  of  appellant.  For  aught  that  ap- 
pears, these  properties  are  totally  distinct  and  independent  of  each 
other,  and  we  are  authorized  to  assume  that  a  sale  and  conveyance  of 
the  one  would  not  necessarily  affect  the  other. 

This  covenant  is  not  to  do  anything  upon  or  about  the  ease- 
ment granted  to  the  Ohio  &  Mississippi  Railroad  Company,  nor  does 
it  in  anywise  affect  the  parcels  of  land  in  which  the  easement  is  grant- 
ed. Its  language  is :  "The  said  party  of  the  second  part  will  always 
employ  the  said  Wiggins  Ferry  Company,  party  of  the  first  part,  to 
transport  for  the  said  party  of  the  second  part  across  the  said 
river  all  persons  and  property  which  may  be  taken  across  the  said 
river,  either  way,  by  the  said  party  of  the  second  part  to  or  from 
Bloody  Island,  either  for  the  purpose  of  being  transported  on  the 
railroad  of  said  party  of  the  second  part,  or  having  been  brought  to 
said  river  upon  the  said  railroad,  so  that  the  said  party  of  the  first 
part,  their  legal  representatives  or  assigns,  owners  of  the  said  Wig- 
gins Ferry,  shall  have  the  profits  of  the  transportation,"  etc.,  etc.  So, 
it  is  the  owner  of  the  ferry,  and  not  the  owner  of  the  parcels  of 
land,  for  whose  benefit  the  covenant  is  made.  Hence  if  appellant  had 
conveyed  its  ferry  to  A.,  and  its  parcels  of  land  to  B.,  A.  alone  would 
have  been  injured  by  a  breach  of  the  covenant.  It  is  impossible  to 
conceive  how  the  owner  of  the  parcels  of  land,  merely  as  such,  could 
be  injured  by  a  breach  of  the  covenant.  It  adds  nothing  to  the  value 
of  the  parcels  of  land,  and  gives  nothing  to  him  claiming  as  owner, 
merely  because  he  is  owner.  It  is  all  for  the  benefit  of  tlie  owners  of 
the  ferf}',  a  totally  separate  and  distinct  property.  It  would  be  diffi- 
cult to  give  a  better  illustration  of  a  purely  collateral  covenant. 

It  has  been  said,  whether  a  covenant  will  or  will  not  run  with  land 
does  not,  however,  so  much  depend  on  whether  it  is  to  be  performed 
on  the  land  itself,  as  whether  it  tends  directly  or  necessarily  to  en- 
hance its  value,  or  render  it  more  beneficial  and  convenient  to  tliose 
by  whom  it  is  owned  or  occupied.  Masury  v.  Southwoi:th,  9  Ohio  St. 
340.     Following  this  form  of  expression,  the  easement  here  granted 

••  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


464  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

IS  in  the  two  parcels  of  land,  not  in  the  ferry,  while  the  covenant  re- 
lates to  and  affects  the  ferry  only.  Undoubtedly  the  covenant  en- 
hances the  value  of  the  ferry,  or  renders  it  more  beneficial,  but  this 
has  nothing  to  do  with  the  two  parcels  of  land  in  which  the  easement 
is  granted.  See  Webb  v.  Russell,  3  Term  R.  393,  402 ;  Bally  v.  Wells, 
3  Wilson,  25-29;  Hurd  v.  Curtis,  19  Pick.  (Mass.)  459;  Brewer  v. 
Marshall,  18  N.  J.  Eq.  337;  19  N.  J.  Eq.  537,  547,  97  Am.  Dec.  679; 
Spencer's  case,  and  notes,  1st  part  1  Smith's  Leading  Cases. 

It  may  be  questionable  whether  this  easement,  under  the  allegations 
before  us,  legally  passed  to  the  assignee,  the  present  appellee,  at  all, 
and  of  course,  if  it  did  not,  no  covenant  could  run  against  appellee 
as  being  a  charge  upon  that  easement.  But  upon  this  we  express  no 
opinion.  We  have  assumed,  without  examination,  that  the  declara- 
tion sufficiently  avers  the  assignment  of  the  easement;  and  we  have 
also  assumed,  as  matter  of  law  (of  the  correctness  of  which,  however, 
we  do  not  apprehend  there  can  be  much  doubt),  that  the  easement,  is 
one  with  which,  under  a  different  supposable  state  of  facts,  a  covenant 
might  run  as  a  covenant  running  with  the  land. 

Our  decision  goes  no  further  than  the  matters  specially  noticed. 
For  the  reasons  given,  we  think  the  court  below  properly  sustained 
the  demurrer  to  the  declaration.    Its  judgment  is  therefore  affirmed. 

Judgment  affirmed.*' 


WOOLISGROFT  v.  NORTON  et  al. 
(Supreme  Court  of  Wisconsin,  1862.     15  Wis.  198.) 

Action  to  recover  for  work  done  and  materials  furnished  by  the 
plaintiff  in  repairing  a  dam  and  raceway.  The  facts,  as  reported  by 
a  referee,  were  substantially  as  follows : 

A.  Hyatt  Smith  and  M.  O.  Walker  were  owners  of  land  in  Rock 
count}%  and  of  a  dam  erected  thereon  across  Rock  river,  and  of  the 
power  thus  created;  Smith  owning  three-fourths  and  Walker  one- 
fourth,  undivided.  While  they  were  such  owners,  in  1849,  Smith 
executed  to  Stevens  &  Older  a  deed  of  a  portion  of  said  land  for  a  mill 
site,  and  for  550  square  inches  of  water  to  be  used  thereon — this  being 
the  first  conveyance  of  any  part  of  said  water  power  by  the  pro- 

87A  covenant  by  a  railroad  to  its  grantor  of  a  right  of  way  to  give  to  tlie 
grantor  a  pass  over  the  railroad  has  been  held  not  to  be  binding  upon  its 
successor  in  title.  Ruddick  v.  St.  Louis,  K.  &  N.  W.  Ry.  Co.,  116  Mo.  25,  22 
S.  W.  499.  .38  Am.  St.  Rep.  570  (1893) ;  Eddy  v.  Hinnant,  82  Tex.  354,  18  S. 
W.  562   (1891). 

A.  owned  riparian  land,  a  mill  and  a  dam.  He  granted  to  a  canal  com- 
pany the  right  to  construct  a  canal  through  his  land  and  draw  water  from  the 
river,  the  canal  coniimny  covenanting  to  maintain  the  dam  so  that  A.,  his 
heirs  and  assigns,  should  always  have  a  specified  amount  of  water  power. 
Held,  a  person  claiming  title  under  A.  cannot  maintain  an  action  of  covenant 
against  the  assign  of  the  original  canal  company  for  failure  so  to  keep  up 
the  dam.     Barringer  v.  Virginia  Trust  Co.,  132  N.  C.  409,  43  S.  E.  910  (1903). 


Ch.  4)  LEGAL  EXFORCEMKNT  OF  COVENANTS  465 

prietors  or  either  of  them.  This  deed  contained  a  covenant  by  the 
grantees  that  they  would  pay  their  ratable  share  of  the  expenses  of 
keeping  in  repair  the  dam  and  raceway,  "in  proportion  to  the  num- 
ber of  square  inches  of  water  by  them  owned  or  used ;"  and  that  on  a 
failure  by  them  to  make  such  payments,  the  grantor  should  have 
the  right  to  enter  upon  said  lot,  and  to  shut  off  therefrom  all  of  said 
water,  until  such  payments  should  be  made ;  and  for  that  purpose,  but 
no  other,  all  watergates  through  which  such  water  might  pass,  were 
declared  to  be  the  property  of  the  grantors,  their  heirs,  etc.  Subse- 
quently Older  quit-claimed  his  interest  in  said  grant  to  Stevens,  who 
afterwards,  in  December,  1850,  received  a  deed  from  Smith  &  Walker 
of  additional  land  and  500  square  inches  more  of  water.  This  deed 
contained  a  covenant  by  Stevens  similar  to  that  above  described.  By 
mesne'  conveyances,  each  containing  similar  covenants  on  the  part  of 
the  grantees,  the  defendants  Norton  and  Ford  became  equal  owners 
in  common  of  the  land  and  the  right  to  said  1050  square  inches  of 
water,  and  were  such  owners  when  the  repairs  mentioned  in  the  com- 
plaint were  made.  *  *  *  i^i  1857,  Smith  &  Walker  employed  the 
plaintiff  to  make  certain  repairs  mentioned  in  the  complaint;  and  he 
did  work  and  furnish  materials  to  the  value  of  $1,630.62,  and  thi? 
amount  was  apportioned  among  the  several  owners,  lessees  and  users 
of  the  water  in  accordance  with  the  rule  above  stated — the  sum  of 
S221.69  being  apportioned  to  the  defendants.  After  the  work  was 
completed  and  the  assessment  made,  the  plaintiff  called  on  Norton, 
one  of  the  defendants,  for  payment,  and  he  agreed  to  pay  by  giving 
the  note  of  Norton  &  Ford  if  Ford  would  consent ;  but  Ford  declined 
to  pay  or  to  give  the  note  of  the  firm  as  proposed,  but  offered  to  set  off 
a  note  which  he  held  against  A.  Hyatt  Smith,  to  pay  the  assessment 
or  such  part  thereof  as  it  would  pay.  All  parties  then  called  on  Smith 
to  obtain  his  assent  to  such  offset,  which  he  refused. 

The  referee  also  found  that  neither  at  the  time  when  the  work 
was  done  and  the  materials  furnished  by  the  plaintiff,  nor  afterwards, 
had  any  formal  assignment  or  transfer  of  the  assessments  been  made 
to  the  plaintiff'  by  the  owners  of  said  dam  and  water  power,  but  the 
same  were  handed  over  to  him  by  A.  Hyatt  Smith  with  directions 
to  collect  them  and  apply  the  money  to  the  payment  of  said  claim 
for  repairs.  The  referee  found  also  that  Norton  &  Ford  had  a  valid 
counterclaim  against  the  plaintiff  for  v$36.34.     *     *     * 

[The  judge  found  in  favor  of  the  plaintiff,  but  the  plaintiff*  ex- 
cepted to  his  method  of  computing  the  amount  due  from  the  defend- 
ants, and  took  this  appeal.] 

Cole,  J."*'  It  appears  to  us  that  this  suit  was  properly  brought  in 
the  name  of  the  plaintiff.  He  was  employed  to  do  the  work  and 
make  the  repairs  on  behalf  of  the  proprietors  of  the  water  power; 

*8  Part  of  the  opinion  Is  omitted. 
BicRiairrs — ."JO 


466  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

and  although  there  was  no  formal  assignmerff  of  the  account  against 
the  defendants  for  repairs,  still  it  was  in  fact  given  to  him  with  di- 
rections to  collect  and  apply  the  money  to  the  payment  of  his  claim, 
so  that  really  he  is  the  party  in  interest.  So  that  the  case  may  be 
considered  as  resting  substantially  on  the  same  grounds  and  control- 
led by  the  same  principles  of  law,  as  though  the  proprietors  had  done 
the  work,  and  made  the  assessment  for  repairs,  and  brought  their 
suit  for  a  ratable  compensation.  If  the  action  could  be  sustained  in 
the  latter  case,  we  cannot  see  why  it  cannot  now.  Could  then  the 
proprietors  of  the  water  power  recover  contribution  for  the  repairs, 
by  virtue  of  the  covenants  in  the  deed.  *  *  *  The  subject  of  this 
grant  was  a  mill  site,  and  a  certain  quantity  of  water  to  be  used 
thereon,  taken  from  a  dam  and  raceway  called  the  Janesville  water 
power.  The  manifest  object  of  the  covenant  was,  to  'provide  ade- 
quate means  for  the  due  preservation  and  security  of  the  dam  and 
raceway,  which  was  the  common  source  of  power,  by  compelling  the 
covenantors  to  pay  the  proprietors  a  pro  rata  share  of  the  expense 
of  repairs  in  the  proportion  which  the  water  they  used  bears  to  the 
whole  amount  used  from  the  power  by  the  proprietors  and  their  sev- 
eral grantees  and  lessees.  This  appears  to  be  the  plain  intent  and  ob- 
ject of  the  covenant.  The  defendants  were  let  into  a  participation 
of  the  common  rights  and  privileges  in  the  power,  and  were  made  sub- 
ject to  common  duties  in  respect  to  its  preservation.  The  grantees 
and  assigns  were  to  contribute  towards  the  expenses  of  the  dam  and 
raceway  which  were  for  the  common  use,  in  proportion  to  the  water 
power  which  they  derive  therefrom,  compared  with  the  other  own- 
ers thereof.  Now  the  question  arises,  was  this  covenant  one  running 
with  the  land,  or  was  it  a  personal  covenant  only  binding  upon  the 
parties  who  made  it?  The  circuit  court  held  that  it  was  one  running 
with  the  land  conveyed  and  water  granted,  and  therefore  imposed  a 
charge  or  burden  upon  the  property,  binding  upon  the  defendants 
as  assignees  of  the  original  grantees.  And  in  this  conclusion  we  think 
the  circuit  court  was  most  clearly  right.     *     *     *- 

Where  a  privity  of  estate  exists  between  the  parties,  and  the  cove- 
nant is  one  about  or  affecting  the  land  devised  or  granted,  and  tends 
directly  and  necessarily  to  enhance  its  value  or  render  it  more  bene- 
ficial to  those  by  whom  it  is  owned  or  occupied,  the  covenant  is  said 
to  be  incident  to  the  land  and  binding  upon  those  in  whom  it  sub- 
sequently vests. 

Some  of  the  authorities  state  the  proposition  much  more  broadly, 
but  I  have  found  no  case  which  holds  that  a  covenant  which  comes 
within  all  these  conditions  was  not  one  real  and  necessarily  running 
with  the  land.  And  within  this  rule  there  can  ^e  no  doubt  that  the 
covenant  in  this  case  runs  with  the  land.  A  privity  of  estate  exists 
between  the  parties ;  the  covenant  concerns  or  relates  to  the  property 
granted ;  it  tends  to  enhance  its  value ;  the  benefit  of  the  repairs 
must  directly  enure  to  all  interested  in  the  preservation  and  security  of 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  467 

the  water  power  which  the  defendants  own  in  common  with  others. 
For  it  is  very  apparent  that  to  enable  the  defendants  to  enjoy  -their 
property,  the  mill  dam  and  raceway  must  be  kept  in  good  condition. 
If  the  water  power  is  destroyed — and  it  is  evident  it  would  be  unless 
the  dam  and  raceway  are  preserved — the  value  of  the  defendants'  mill 
is  depreciated,  if  not  destroyed,  too.  Nor  can  it,  with  any  justness,  be 
said,  that  the  covenant  relates  to  matters  foreign  to  the  property  grant- 
ed. It  is  directly  connected  with  it.  The  subject  of  the  grant  is  a 
mill  site,  and  an  interest  in  a  water  power;  and  a  covenant  to  con- 
tribute to  the  expense  of  preserving  the  water  power  most  unques- 
tionably relates  to  the  thing  granted.  We  therefore  must  hold  that  the 
covenant  is  one  connected  with  or  annexed  to  the  property  granted, 
and  binding  upon  the  defendants.  This,  we  think,  is  clear  upon  all  tlic 
authorities.     *     *     * 

[The  case  was  remanded  on  other  grounds.] 


FARMERS'  &  MERCHANTS'  IRRIGATION  CO.  v.  HILL. 

(Supreme  Court  of  Nebraska,  1912.    90  Neb.  847,  134  N.  W.  929,  39  L.  R.  A. 
[N,  S.]  79S,  Ann.  Cas.  1913B,  524.) 

Hamer,  J.«®  The  plaintiff,  the  Farmers'  &  Merchants'  Irrigation 
Company  (appellant  in  this  court),  commenced  an  action  in  the  district 
court  of  Dawson  county  against  the  defendant,  S.  J.  Hill,  to  recover  a 
judgment  for  $750  and  interest  for  a  water  maintenance  fee  for  the 
years  1907,  1908.  and  1909.  The  plaintiff  alleged  that  it  owned  and  op- 
erated an  irrigation  canal  and  furnished  water  to  lands  upon  which 
water  rights  were  held,  and  that  the  defendant  owned  section  S  in 
township  10  N.,  of  range  21  W.,  in  Dawson  county,  and  that  one  of 
the  main  ditches  of  the  plaintiff  passed  ^through  said  land;  that  there 
was  attached  to  said  land  a  water  right  which  was  evidenced  by  a 
"water  right  deed"  for  500  acres  of  said  land  lying  under  said  ditch, 
which  deed  was  of  record  at  the  time  the  defendant  purchased  the 
land ;  that  in  this  water  right  deed  there  was  a  provision  which  re- 
quired the  payment  of  50  cents  an  acre  as  an  annual  maintenance 
fee ;  that  the  plaintiff  was  engaged  in  furnishing  water  to  water  users 
under  its  said  canal ;  that  the  land  of  the  defendant  was  susceptible 
of  irrigation ;  that  no  part  of  said  maintenance  fee  had  been  paid ; 
and  that  there  was  due  the  plaintiff*  from  the  defendant  $750  and  in- 
terest. The  defendant  answered  that  he  was  the  present  owner  of 
the  land,  but  denied  all  the  other  matters  alleged. 

Upon  the  trial  the  plaintiff'  offered  in  evidence  the  deed  for  the  land 
described  in  the  petition  together  with  the  indorsements  thereon,  all  of 
which  were  received  without  objection.     There  was  also  offered  and 

89  Part  of  the  opinion  is  omitted. 


468  RIGHTS   IN   THE   LAND   OP   ANOTHER  (Part  2 

redeived  in  evidence  a  "water  right  deed"  containing  the  covenants 
upon,  which  plaintiff  predicates  its  right  of  action.  The  deed  for  the 
land  is  one  of  general  warranty  running  from  the  Nikaniss  Company 
to  the  defendant,  and  contains  only  the  ordinary  and  usual  covenants 
in  such  a  deed.  The  water  right  deed  from  the  plaintiff  to  the  Nikaniss 
Company  contains  the  following  conditions :  "That  the  said  party  of 
the  first  part  [The  Farmers'  &  Merchants'  Irrigation  Co.],  for  and  in 
consideration  of  the  sum  of  $1,750  to  it  in  hand  paid,  the  receipt 
whereof  is  hereby  acknowledged,  and  of  the  further  annual  payment 
hereinafter  mentioned  and  provided  for,  to  be  made  at  the  times 
named  in  this  deed,  have  sold  subject  to  the  limitations  and  conditions 
hereinafter  named,  and  by  these  presents,  does  sell  and  convey,  unto 
the  said  party  of  the  second  part  [Nikaniss  Company],  and  to  its 
heirs,  assigns,  and  legal  representatives,  the  right  to  use  water,  from 
the  canal  of  the  said  party  of  the  first  part,  during  the  irrigating  sea- 
son of  each  and  every  year,  in  an  amount  not  exceeding  the  rate  of  one 
cubic  foot  per  second  of  time  for  each  70  acres  of  land  hereinafter  de- 
scribed, to  be  used  upon  and  for  tlie  purpose  of  irrigating  the  said  land, 
only,  the  same  being  situated  in  the  county  of  Dawson,  state  of  Ne- 
braska, to  wit:  All  that  part  of  section  5,  in  township  10  north, 
tDf  range  21  west,  lying  south  of  the  main  canal  of  the  the  party  of  the 
first  part  (except  that  part  taken  up  by  slough)  containing  500  acres. 
The  said  party  of  the  second  part,  its  heirs,  assigns  and  legal  repre- 
sentatives agree  to  pay  to  the  party  of  the  first  part,  its  successors 
and  assigns,  as  a  part  of  the  consideration  of  this  grant,  annually  in 
advance,  on  or  before  the  first  day  of  March  in  each  and  every  year, 
the  further  sum  of  $250,  the  same  being  in  addition  to  the  consid- 
eration above  expressed,  and  the  amount  named  is  hereby  agreed 
upon  as  a  liquidated  sum  as  compensation  to  the  first  party  for  main- 
taining and  operating  said  canal  which  it  hereby  promises  and  agrees 
to  do,  and  the  said  party  of  the  second  part  agrees  to  make  said  pay- 
ments well  and  truly,  at  the  times  herein  named."     *     *     * 

The  deed  from  the  Nikaniss  Company  to  Silas  J.  Hill  is  of  the 
date  April  6,  1906,  and  was  filed  for  record  May  10,  1906.  The 
"water  right  deed"  from  the  Farmers'  &  Merchants'  Irrigation  Com- 
pany to  the  Nikaniss  Company  is  of  the  date  February  13,  1904,  and 
was  filed  for  record  February  24,  1904.  On  the  trial  it  was  stipulated 
that  the  plaintiff  was  a  corporation,  and  that  the  defendant  had  paid 
no  part  of  the  maintenance  fee  claimed  by  plaintiff  in  the  petition,  that 
the  defendant  owned  the  land  at  the  time  of  the  commencement  of 
the  action,  and  that  he  has  owned  it  at  all  times  since  he  purchased 
the  same.  It  was  also  stipulated  for  the  purposes  of  the  case  that  at 
all  times  mentioned  in  the  petition  the  plaintiff  has  been  willing  and 
able  to  furnish  water  as  provided  in  the  "water  right  deed,"  but  that 
the  defendant  at  all  times  refused  to  recognize  any  rights  or  liabilities 
by  reason  of  such  deed,  and  refused  to  ask  for  water  or  to  accept  wa- 
ter thereunder.     It  was  also  agreed  thaf  the  "water  right  deed"  was 


Cll.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  469 

duly  indexed  against  the  land  therein  described  at  the  time  the  same 
was  filed  for  record. 

It  is  the  contention  of  the  plaintiff  that  the  "water  right  deed"  at- 
tached to  the  land  and  passed  with  the  change  of  title,  and  that,  there- 
fore, the  defendant  was  liable  to  pay  the  maintenance  fee  for  each 
year  as  it  matured.  It  is  said  in  plaintiff's  brief  that:  "Under  the 
rule  established  by  this  court  the  water  right  deed  attached  to  the 
land,  and  cannot  be  severed  from  it.  The  appellee,  the  owner  of  the 
land,  is  the  only  person  who  can  receive  any  benefit  from  this  water 
right,  and  he,  in  turn,  should  be  held  Hable  to  pay  the  annual  mainte- 
nance fee."  Counsel  for  the  plaintiff  contends  in  his  brief  "the  sole 
question  in  this  case  is,  Can  appellant  maintain  a  cause  of  action  against 
appellee  to  recover  this  maintenance  fee,  there  having  been  no  express- 
ed assumption  of  the  obligation  in  the  deed  conveying  the  land  to  the 
appellee?"  The  defendant  contends  that  he  cannot  be  held  personally 
liable,  and  the  district  court  adopted  that  view  and  dismissed  the  case. 

The  question  to  be  determined  is  whether  the  defendant  has  as- 
sumed the  obligations  of  the  contract  entered  into  between  the  irriga- 
tion company  and  the  Nikaniss  Company,  tlie  original  owners  of  the 
land.  The  defendant  bought  the  land  and  received  a  deed  which  was 
in  the  ordinary  form  of  a  warranty  deed,  and  did  not  mention  or  re- 
fer to  the  contract  sued  upon.  By  the  purchase  of  the  land  and  by  re- 
ceiving the  deed,  does  the  defendant  assume  the  contract  of  his  gran- 
tor, and  is  he  personally  charged  with  the  obligations  of  such  grantor  ? 

It  is  argued  that  section  6825,  Ann.  St.  1909,  obligates  the  ditch  com- 
pany to  keep  its  canal  in  repair,  and  that,  therefore,  the  duty  which  the 
Legislature  fixes  upon  the  ditch  company  creates  an  obligation  on  its 
patrons  to  provide  the  funds  necessary  for  the  performance  of  the 
duty.  The  contract  sought  to  be  enforced  is  executory.  The  suit 
brought  is  in  personam.  It  is  brought  against  the  person  instead  of 
against  the  thing,  and  is  not  a  suit  against  the  land  to  enforce  an  al- 
leged lien,  but  it  is  an  action  against  the  defendant,  and  the  theory  up- 
on which  it  is  sought  to  be  maintained  of  necessity  would  seem  to 
imply  the  personal  promise  of  the  defendant  to  pay  the  money.  The 
conveyance  made  by  the  Nikaniss  Company  to  the  defendant  Hill  may 
have  transferred  to  him  all  the  property  rights  which  the  Nikaniss 
Company  had  in  the  land  conveyed,  but,  if  the  grantee  did  not  promise 
in  any  manner  to  assume  the  obligation  of  his  grantor,  how  can  he  be 
bound  ? 

The  argument  of  counsel  for  plaintiff  is  that  "there  was  no  reser- 
vation or  suggestion  of  reservation  in  the  deed  from  the  Nikaniss 
Company  to  appellee.  Hill.  That  deed,  'Exhibit  B,'  it  is  submitted, 
carried  with  it  the  water  right  attached  to  this  land  as  an  appurtenance 
to  the  land.  The  acceptance  of  the  deed  by  appellee  Hill  from  the 
Nikaniss  Company  was  an  acceptance  of  all  the  incidents  attached  to 
or  belonging  to  the  land  transferred  to  appellee  (defendant),  and  charg- 
ed  him   with   the  conditions   written   therein."     The   defendant   Hill 


470  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

is  a  stranger  to  the  original  contract  made  between  the  Farmers'  & 
Merchants'  Irrigation  Company  and  the  Nikaniss  Company.  If  it  may 
be  properly  said  that  the  defendant,  Hill,  received  the  deed  to  the 
land  from  the  Nikaniss  Company  with  notice  that  the  ditch  is  an  ease- 
ment and  with  notice  of  all  the  rights  of  the  ditch  company  (Arter- 
burn  V.  Beard,  86  Neb.  733,  126  N.  W.  379),  and  therefore  he  is- 
charged  with  such  notice,  as  is  said  in  Seng  v.  Payne,  87  Neb.  812, 
128  N.  W.  625,  yet  it  would  seem  that  that  does  not  in  any  way  tend 
to  establish  the  personal  Hability  of  the  defendant.  Counsel  for  the 
plaintiff  seems  to  have  been  unable  to  find  any  case  directly  in  point 
which  supports  his  contention.     *     *     * 

In  Lexington  Bank  v.  Sailing,  66  Neb.  180,  92  N.  W.  318,  it  is  held 
that  the  conveyance  of  land  subject  to  outstanding  incumbrances  im- 
poses upon  the  purchaser  no  obligation  to  pay  such  incumbrance.  In 
discussing  the  case  -the  court  said :  "It  has  long  been  settled  in  this 
state  that  the  acceptance  of  a  deed  which  in  express  terms  conveys 
land  subject  to  an  incumbrance  does  not  impose  upon  the  grantee  a 
personal  obligation  to  pay  the  debt.  He  is  in  such  case  interested  irv 
discharging  the  incumbrance,  but  he  owes  neither  the  grantor  nor  the 
incumbrancer  any  duty  arising  ex  contractu.  The  transaction  being 
nothing  more  than  the  purchase  of  an  equity  of  redemption,  no  im- 
plied agreement  is  deducible  from  it." 

We  approach  the  determination  of  this  case  with  a  full  realization 
of  the  importance  of  irrigation  to  the  state.  While  the  great  bulk  of 
farming  in  Nebraska  is  done  upon  agricultural  lands  which  are  not 
irrigated,  yet  a  very  considerable  section  must  always  depend  upon 
the  successful  application  of  water  to  agricultural  uses.  This  section 
of  our  state  is  already  prosperous,  and  is  destined  to  support  a  dense 
population.  Irrigation  is  to  be  encouraged  and  protected  in  every  le- 
gitimate way.  While  the  plaintiff  may  be  obliged  to  furnish  the  de- 
fendant with  water  for  irrigation  purposes  if  he  demands  it,  and  the 
plaintiff  has  it,  yet  the  refusal  of  the  defendant  to  accept  the  water  does 
not  create  a  personal  liability  against  the  defendant.  It  is  contended 
by  the  plaintiff  that  the  maintenance  fee  is  by  the  terms  of  the  "water 
right  deed"  made  a  charge  upon  the  land,  and  that  the  defendant  by  his 
purchase  of  the  land  became  personally  liable  for  the  payment  of  such 
maintenance  fee.  The  trouble  with  this  contention  is  that  neither  the 
terms  of  his  deed  nor  the  several  irrigation  acts  impose  upon  him 
any  such  personal  liability.  We  are  of  opinion  that  the  trial  court 
correctly  determined  the  question  before  it. 

The  judgment  of  the  district  court  is  right,  and  it  is  affirmed.^" 

90 A  similar  covenant  was  held  to  create  no  personal  obligation  upon  the 

grantee  of  the  covenantor,  but  to  create  a  lien  upon  the  land  for  the  price 

of  the  water  actually  furnished.  Fresno  Canal  Co.  v.  Rowell,  80  Cal  114, 
22  Pac.  53,  13  Am.  St.  Rep.  112   (1889). 

See  Consolidated  Arizona  Smelting  Co.  v.  Hinchman,  212  Fed.  813  121) 
C.  C.  A.  267  (1914). 

As  to  the  liability  of  a  covenantor  after  he  has  conveyed  the  burdenod 


Cll.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  471 

.     (C)  Party  Wall  Covenants 

GIBSON  V.  HOLDEN 
(Supreme  Court  of  Illiiiois,  1885.     115  111.  199,  .3  N.  E.  282,  56  Am.  Kep.  146.) 

[Holden  and  Armstrong  were  the  owners  of  adjoining  lots  in  the 
city  of  Chicago.  Holden  was  about  to  build  on  his  lot,  and  it  was 
desired  by  both  persons  that  the  wall  on  the  side  toward  Armstrong's 
lot  should  be  a  party  wall.  On  July  3,  1872,  they  executed  a  deed 
which,  after  reciting  the  above  facts,  provided  as  follows  :] 

"They  therefore  agree  that  said  Holden  may,  in  the  erection  of  the 
improvements  on  his  property,  place  one-half  in  width  of  the  wall  of 
his  building  upon  the  property  of  said  Armstrong,  that  said  wall  shall 
be  suitable  for  a  party  wall,  and  shall  continue  to  be  a  party  wall  for- 
ever. And  the  said  Holden  and  Armstrong  agree  to  keep,  maintain, 
repair  and  rebuild  said  wall,  whenever  necessary,  at  the  equal  joint 
expense  of  each.  Said  wall,  when  first  built,  is  to  be  built  and  paid 
for  by  said  Holden  alone,  and  whenever  said  Armstrong  uses  all  or 
any  part  of  said  party  wall,  he  shall  first  pay  to  said  Holden  the  cost 
of  one-half  of  the  part  of  the  said  wall.     *     *     * 

"The  provisions  of  this  agreement  shall  be  deemed  and  taken  to  be 
covenants  running  with  the  land,  and  shall  be  binding  upon  the  execu- 
tors, heirs,  devisees  and  assigns  of  said  parties,  and  shall  bind  all 
persons  having,  at  any  time,  any  interest  or  estate  in  said  land." 

[Holden  built  and  paid  for  the  wall.  He  later  conveyed  his  lot  to 
Emeretta  A.  Gibson,  who  continued  to  own  it  at  the  time  of  this 
action.  The  title  to  Armstrong's  lot  became  vested,  by  mesne  con- 
veyances, in  one  Kedzie.  Kedzie  wished  to  erect  a  building  and  use  a 
portion  of  the  party-wall.  Being  uncertain  as  to  who  was  entitled  to 
the  money,  he  paid  into  court  one  half  the  cost  of  that  part  of  the 
wall.  This  bill  was  filed  to  settle  the  rights  of  Gibson  and  Holden  in 
the  money.] 

ScHOLFiELD,  J.°^  The  language  of  this  agreement  very  clearly 
shows  that  this  wall  was  built  as  a  party-wall,  and  to  rem.ain  such. 
It  says,  after  the  recital  showing  the  intention  of  Holden  to  build 
the  wall,  and  the  mutual  desires  of  the  parties  that  it  shall  be  a  party- 
wall  on  the  line  between  their  lots,  one-half  of  the  wall  resting  on  the 
ground  of  each :    "They  therefore  agree  that  said  Holden  may,  in  the 


premises,  see  Pcden  v.  Chicago,  E.  I.  &  P.  Ry.  Co.,  73  Iowa,  328.  .35  N.  W. 
424,  5  Am.  St.  Rep.  680  (1887);  Sexauer  v.  Wil.sou.  136  Iowa,  357,  113  JN. 
W.  941,  14  L.  R.  A.  (N.  S.)  185,  15  Ann.  Cas.  54  (1907) ;  Hickey  v.  Lake 
Shore  &  M.  S.  Rv.  Co.,  51  Ohio  St.  40,  36  N.  E.  072,  23  L.  R.  A.  396,  46  Am. 
St.  Rep.  545  (1804) ;  Carr  v.  Lowry's  Adm'r,  27  Pa.  257  (1856). 

As  to  the  running  of  covonauts  annexed  to  a  rent  charge,  see  note  14  to 
V.  Cooper,  post,  p.  566. 

91  The  stiiteiuent  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


472  RIGHTS   IN   THE   LAND   OP   ANOTHER  (Part  2 

erection  of  the  improvements  on  his  property,  place  one-half  in  width 
of  the  wall  of  his  building  upon  the  property  of  said  Armstrong; 
that  said  wall  shall  be  suitable  for  a  party-wall,  and  shall  continue  to 
be  a  party-wall  forever."  The  word  "continue"  manifestly  means 
from  the  time  of  the  building  of  the  wall,  for  there  is  no  other  period 
indicated  to  which  it  can  have  reference.  This  view  is  confirmed  by 
the  further  language :  "And  the  said  Holden  and  Armstrong  agree  to 
keep,  maintain,  repair,  and  rebuild  said  wall."  When?  The  language 
of  the  agreement,  continuing,  answers,  "Whenever  necessary ;"  that  is 
to  say,  at  any  time  from  the  building  of  the  wall.  And  this  is  to  be 
done  "at  the  equal  joint  expense  of  each."  Had  it  been  intended  that 
the  ownership  of  the  wall  should  be  in  Holden  until  such  time  as 
Armstrong  should  pay  him  for  one-half,  it  would  have  been  the 
duty  of  Holden  alone,  until  that  time,  to  have  kept,  maintained,  re- 
paired, and  rebuilt  the  wall;  and  we  are  bound  to  presume  that,  had 
such  been  the  intention,  language  expressing  that  the  wall  should  be 
a  party  wall  ivhen  or  upon  condition  that  Armstrong  should  pay  for 
one-half,  and  that  thereafter  the  wall  should  be  kept,  maintained,  re- 
paired, and  rebuilt  at  the  equal  joint  expense  of  each,  would  have  been 
used  instead  of  that  which  was  used.  The  sharing  of  the  burdens  of 
repair,  rebuilding,  etc.,  jointly,  is  an  obvious  result  of  a  joint  title  or 
ownership,  and  could  never  be  presumed,  in  the  absence  of  language 
admitting  of  no  other  reasonable  construction,  as  intended  to  apply 
to  property  whereof  the  title  or  ownership  was  in  but  one  of  the 
parties. 

While,  however,  it  is  clear  that  the  title  or  ownership  of  the  wall  is 
joint  the  moment  it  is  built,  and  that  it  so  continues,  it  is  also  clear 
that  in  order  to  secure  Holden  for  his  advances  on  the  joint  account  in 
building  the  wall,  the  sole  possession  of  the  wall  shall  be  in  Holden 
alone;  or,  in  other  words,  that  Armstrong  shall  not  be  allowed  to 
use  the  wall  until  he  shall  repay  those  advances.  Armstrong  has  title  to 
one-half  of  the  wall,  but  Holden  retains  the  possession  of  the  whole  as 
a  security  for  his  debt..  There  is  no  language  used  applicable  to  a 
sale.  When  Armstrong  desires  to  use  the  wall,  he  is  not  to  pay  for 
one-half  its  value,  or  a  sum  to  be  agreed  upon  as  the  price  of  one-half 
of  the  wall,  as  we  .should  expect  in  case  of  a  sale;  he  is  simply  "to 
first  pay  to  said  Holden  the  cost  of  one-half  part  of  said  wall."  Hold- 
en's  necessities  for  the  immediate  use  of  tlie  wall  are  such  tliat  he  is  will- 
ing and  consents  to  loan,  in  effect,  to  Armstrong  so  much  money  for 
that  indefinite  time.  Cases,  therefore,  where  parties  are,  by  the  deed 
under  which  they  take  title,  given  one-half  of  a  wall  as  a  party-wall, 
xvhen  or  upon  condition  of  making  payment,  and  cases  in  which  the 
owner  of  one  lot  has  licensed  the  owner  of  the  adjoining  lot  to  build  a 
wall  for  himself,  resting  one-half  of  it  on  each  lot  and  reserving  the 
privilege  of  thereafter  purchasing  one-half  the  wall  as  a  party-wall, 
are  not  analogous.  In  all  such  cases  the  title  to  the  whole  wall  may 
be  reearded  as  appurtenant  to  the  lot  of  the  builder,  and  so  passing 


Ch.  4)  LEGAL    ENFORCEMENT    OF   COVENANTS  473 

by  every  conveyance  of  it,  until  the  severance  of  the  half  by  the  pay- 
ment of  the  purchase  money.  The  sale  of  the  half  of  the  wall  does 
not  occur,  nor  the  title  to  it  pass,  in  those  cases,  until  the  payment 
is  made,  and  so,  necessarily,  it  is  constructively  a  sale  by  the  assignee 
of  so  much  of  tlie  wall.  His  right  to  the  purchase  money  is  not  be- 
cause he  is  the  assignee  of  a  covenant  running  with  the  land,  but  be- 
cause he  is  the  vendor  of  so  much  of  the  wall."^     *     *     * 

All,  therefore,  that  Holden  could  have  conveyed  to  another  was  the 
title  to  his  lot,  and  the  easement  in  the  half  of  the  wall  resting  upon 
the  lot  of  Armstrong  for  the  support  of  his  half  of  the  wall.  We 
think  it  quite  clear  from  the  language  of  the  agreement  that  it  was 
never  intended  that  more  than  this  should  pass  by  any  conveyance  of 
the  lot  of  Holden.  Counsel  for  appellant,  however,  contend  that  the 
concluding  paragraph  of  the  agreemen*:  shows  that  it  was  intended  that 
the  right  to  receive  payment  for  constructing  the  half  of  the  wall 
resting  on  the  lot  of  Armstrong  should  pass  by  conveyance  as  an  ap- 
purtenant to  the  lot  of  Holden.     That  paragraph  reads : 

"The  provisions  of  this  agreement  shall  be  deemed  and  taken  to  be 
covenants  running  with  the  land,  and  shall  be  binding  upon  tlie  exec- 
utors, heirs,  devisees,  and  assigns  of  said  parties,  and  shall  bind  all 
persons  having  at  any  time  any  interest  or  estate  in  said  land." 

It  must  be  apparent  to  all  that  this  language  was  hot  intended  to  be 
taken  literally ;  for  it  would  be  absurd  to  suppose  that  an  assignee  of 
Armstrong's  lot  should  be  bound  for  the  payment  of  the  one-half  of  the 
cost  of  the  wall  resting  on  that  lot  after  the  amount  had  once  been 
paid.  And  it  would  seem  equally  apparent  that  it  could  not  have  been 
intended  that  payment  should  be  made  to  the  lot-owner,  as  such,  unless 
the  payment  would  necessarily  have  the  effect  to  benefit  the  lot  in  some 
way.  Unless  such  a  payment,  or  rather  a  payment  having  such  an 
effect,  was  intended,  there  is  no  conceivable  reason  why  Holden  should 
have  desired  that  one  debt  rather  than  another  should  be  paid  to  his 
assignee.  If  the  debt  could  not  have  that  effect,  why  should  he  want 
it  transferred  to  his  assignee  at  all  ?  Why  should  a  debt  be  transferred 
by  a  sale  of  real  estate,  unless  of  tliat  character  that  it  would  neces- 
sarily affect  the  value  or  quality  or  the  enjoyment  of  the  real  es- 
tate ?  Where  the  covenant  is  not  of  a  nature  that  the  law  permits  it  to 
be  attached  to  the  estate  as  a  covenant  running  with  the  land,  it  cannot 

02  "We  think  that  the  proper  rule,  founded  upon  reason  and  fundamental 
principles,  is  that,  unless  payment  for  an  interest  in  said  wall  is,  by  the  clear 
tprras  of  the  contract,  made  a  condition  precedent  to  the  vesting  of  title  In 
)the  nonbuilder,  such  title  should  be  held  to  vest  in  such  nonbuilder  at  least 
»as  soon  as,  under  the  terms  of  such  contract,  he  becomes  liable  to  pay  the 
agreed  consideration  for  such  interest  therein  ;  that,  regardless  of  the  time 
when  the  nonbuilder  becomes  liable  for  .such  consideration,  the  title  should 
be  held  to  vest  in  him  immediately  upon  the  erection  of  such  wall,  if  under 
the  terras  of  such  contract  he  then  assumes  any  responsibilities  in  relation 
to  such  wall,  such  as  liability  to  keep  same  in  repair  or  to  share  in  expense 
of  repairs."  Hill  v.  City  of  Huron.  S,*^  S.  D.  324,  331,  145  N.  W.  570,  57*-' 
(1914).     See  also  Mickel  v.  York,  17.5  111.  62,  51  N.  E.  848  (1S9S). 


474  RIGHTS   IX   THE   LAND   OF   ANOTHER  (Part  2 

be  made  such  by  agreement  of  the  parties.  Masury  v.  Southworth,  9 
Ohio  St.  340;  Glenn  v.  Canby,  24  Md.  127;  Brewer  v.  Marshall,  18 
N.  J.  Eq.  2,Z7;  Id.,  19  N.  J.  Eq.  537,  97  Am.  Dec.  679;  notes  to  Spen- 
cer's Case,  1  Smith,  Lead.  Cas.  (7th  Amer,  Ed.)  pt.  1,  168. 

Our  conclusion  therefore  is  that  tlie  fair  construction  of  this  clause 
of  the  agreement  will  not  warrant  us  in  holding  that  it  was  intended 
the  right  to  receive  payment  for  the  half  of  the  cost  of  the  wall  should 
pass  by  a  conveyance  of  Holden's  lot,  unless  the  language  of  the  for- 
mer part  of  the  agreement  is  susceptible  of  that  construction,  and  that 
it  was  only  intended  by  this  clause  that  such  covenants  should  run  with 
the  land  of  both  parties,  or  of  either  party,  as  were,  when  considered 
with  reference  to  their  subject-matter,  practically  adapted  to  the  ac- 
complishment of  that  end,  and  susceptible,  legally,  of  being  enforced  as 
such.     *     *     * 

It  seems  impossible  to  hold  that  the  right  to  receive  payment  for  the 
cost  of  one-half  the  wall  ran  with  the  land.  One  easement  was  un- 
doubtedly the  consideration  of  the  other.  The  party-wall  was  to  be 
built  at  the  joint  expense  of  the  lot-owners,  but  by  what  particular  per- 
son the  materials  were  to  be  procured  and  brought  upon  the  ground, 
and  the  mechanical  operation  of  laying  up  the  wall  performed,  or  by 
whom  this  was  to, be  superintended,  or  by  whom  the  money  was  to  be 
advanced  to  make  payments,  were  questions  entirely  independent  of 
and  apart  from  the  ownership  of  the  wall  and  the  character  of  the 
easement  which  the  lot-owners  had  in  the  part  of  the  wall  resting  on 
the  lots  of  each  other.  The  materials  might  have  been  furnished,  the 
wall  built,  and  the  entire  amount  paid  therefor  advanced  by  a  stranger. 
This  was  the  mere  furnishing  of  so  much  material  and  doing  of  so 
much  work  for  so  much  money,  or  the  advancing  of  so  much  money 
to  be  repaid  again,  and  created  only  the  relations  of  employer  and 
employe,  or  borrower  and  lender.  The  fact  that  Holden  was  furnish- 
ing materials  and  doing  work  for  himself  on  his  side  of  the  wall  could, 
by  no  reasonable  construction,  affect  his  relations  in  regard  to  the 
other  half  of  the  wall  which  he  was  building  for  Armstrong.  There 
is  no  claim  that  the  money  to  be  paid  by  Armstrong,  or  on  his  half  of 
the  wall,  was  to  be  expended  upon  the  lot  of  Holden,  or  upon  the  wall 
generally,  or  that  it  was  to  be  used  in  any  particular  way.  As  to  Hol- 
den, the  money,  when  collected,  would  be  like  all  other  money.  An 
assignee  would  be  no  more  benefited  by  receiving  this  money  than  by 
receiving  money  from  any  other  source,  or  on  any  other  account.  To 
benefit  him  as  landowner,  it  must,  in  some  way,  affect  the  value  or  the 
use  of  the  land.  It  is  not  enough  that  it  simply  enri(ihes  the  assignee 
by  that  many  dollars.  Whether  this  money  should  be  paid  or  not,  the 
condition  of  the  wall  and  of  the  lot  of  Holden  would  remain,  in  every 
respect,  precisely  the  same.  It  would  be  difficult  to  give  a  better  illus- 
tration of  a  purely  collateral  contract  or  covenant,  so  far  as  Holden's 
rights  are  affected,  than  this  undertaking  to  pay  for  the  cost  of  one- 
half  of  the  wall.     *     *     * 


Ch.  4)  LEGAL   ENFORCEMENT   OF   COVENANTS  475 

Counsel  for  appellant  strenuously  insist  that  the  ruling  in  Roche  v. 
Ulman,  104  111,  11,  authorizes  the  plaintiff  here  to  recover.  We  do 
not  think  so.  That  case  states  that  had  an  action  been  brought  against 
Kcdzie,  he  would  have  been  held  liable,  but  it  goes  no  further.  Ked- 
zie  took  under  the  agreement,  and  with  notice  of  it,  and  before  he  can 
have  the  benefit  of  the  agreement  he  must  comply  with  its  terms.  His 
lot  is  charged  with  ttje  burden  of  paying,  that  is,  in  the  sense  that  the 
wall  cannot  be  used  for  the  benefit  of  his  lot  until  he  does  pay ;  but 
that  burden  is  not  to  be  discharged  for  the  benefit  of  the  adjoining 
lot,  or  so  as  in  anywise  to  affect  it.  Like  a  mortgage  or  deed  of  trust, 
the  land  is,  in  the  sense  mentioned,  burdened  with  the  payment  of  a 
debt ;  but  its  payment  affects  no  other  land  beneficially. 

We  see  no  cause  to  disturb  tlie  judgment  of  the  appellate  court.  It 
is  therefore  affirmed. 

Judgment  affirmed.^' 


CONDUITT  V.  ROSS. 

(Suprome  Court  of  Indiana,  18S5.     102  Ind.  166,  26  N.  E.  198.) 

Mitchell,  J.  On  the  26th  day  of  April,  1875,  Julia  A.  Ross  and 
John  Hauck  were  the  owners  of  adjoining  lots  in  the  city  of  Indian- 
apolis. Pursuant  to  a  written  agreement  entered  into  by  Mrs.  Ross 
and  her  husband  on  the  one  part,  and  Mr.  Hauck  on  the  other,  she 
placed  one-half  the  width  of  the  south  wall  of  a  four-story  brick  and 
stone  building  which  she  erected  on  her  lot  on  the  north  margin  of  the 
Hauck  lot.  After  erecting  the  building  she  conveyed  the  lot,  with  the 
improvements  thereon,  to  George  P.  Bissell,  reserving,  by  a  stipulation 
contained  in  her  deed,  the  right  to  receive  compensation  from  adjoin- 
ing property  owners  for  the  building,  or  use  of  existing  party-walls* 
Subsequently  the  appellant  became  the  owner  of  the  Hauck  lot,  and 
in  1882  commenced  the  erection  of  a  building  thereon,  and  attached 
the  same  to  and  used  the  wall  erected  by  Mrs.  Ross.  Refusing  to 
make  payment,  this  suit  was  commenced  to  recover  one-half  the  orig- 
inal cost  of  the  wall.  Upon  issues  made,  a  trial  was  had,  which  re- 
sulted in  a  finding  and  judgment  for  the  plaintiff. 

Counsel  for  appellant  rest  their  argument  for  a  reversal  of  this 
judgment  mainly  upon  tlie  proposition  that  the  agreement  between 

»3Acc.,  where  the  party  wall  agreement  lacked  the  tinal  covenant  con- 
tained in  the  deed  in  Gibson  v.  Ilolden:  Bloch  v.  Isham,  28  Ind.  37,  92  Am. 
Dec.  2S7  (1S67) ;  Cole  v.  Hughes,  54  N.  Y.  444,  13  Am.  Rep.  611  (1873) ;  Kenny 
V.  Mackenzie.  12  Ont.  App.  346  (1885). 

Compare  Crater  v.  McCormick,  4  Colo.  196  (1878). 

A.  owned  a  wall  standing  wholly  on  his  own  land.  X.  had  a  lease  of  an 
adjoining  lot.  A.  by  deed  leased  to  X.  the  use  of  one-half  of  A.'s  wall  as  a 
party  wall  for  thirty  years  at  a  specified  rent.  A.  died,  and  the  parcel  own- 
ed by  him  was  allotted  to  B.  as  one  of  A.'s  heirs.  X.  died,  and  his  lease- 
hold intere.'=t  passed  to  Y.  Held,  R.  may  recover  the  rent  from  Y.  Mackin 
V.  Haven,  1S7  111.  480,  58  N.  E.  448  (1900). 


476  RIGHTS  IN  THE   LAND   OF   ANOTHER  (Part  2 

Hauck  and  Mrs.  Ross  was  purely  personal  to  them,  and  that  Conduitt, 
by  using  the  wall  erected  in  pursuance  thereof,  came  i;nder  no  obliga- 
tion whatever  in  consequence  of  such  use.  They  insist  further,  that, 
if  liable  at  all,  the  extent  of  his  Hability  was  the  actual  value  of  the 
wall  when  used,  and  not  its  original  cost.  The  rights  and  obligations  of 
the  parties  must  be  determmed  .by  a  construction  of  the  agreement  al- 
ready referred  to,  which  is  of  the  following  tenor: 

"This  agreement  between  John  Hauck  of  the  first  part,  and  Julia  A. 
Ross,  and  Norman  M.  Ross,  her  husband,  of  the  second  part,  wit- 
nesseth:  That,  in  consideration  that  the  parties  of  the  second  part 
shall  erect  a  substantial  brick  wall,  twelve  inches  in  thickness,  and  four 
stories  high,  on  the  line  dividing  the  property  of  John  Hauck  and 
Julia  A.  Ross,  in  square  87,  in  the  city  of  Indianapolis,  Marion  county, 
Indiana,  which  line  is  twelve  feet  south  of  the  south  line  of  lot  No.  4, 
in  Morris  Morris'  subdivision  of  square  87,  in  the  city  of  Indianapolis, 
and  which  wall  is  to  stand  six  inches  in  width  upon  the  ground  of 
said  Hauck,  and  six  inches  upon  the  ground  of  said  Ross,  and  is  to  run 
back  the  depth  of  said  Ross'  present  building,  and  may  at  any  time  be 
extended  further  back  on  the  same  line  the  full  depth  of  said  lots,  by 
either  party,  the  full  consent  of  said  Hauck  to  the  erection  of  said 
walls  being  hereby  granted :  Now,  therefore,  said  John  Hauck  here- 
by binds  himself,  his  heirs,  executors,  administrators,  and  assigns, 
that  whenever,  after  the  erection  of  said  wall  or  walls  by  the  party  of 
the  second  part,  said  Hauck,  his  heirs,  executors,  administrators,  or 
assigns,  shall,  in  any  building  he  or  they  may  erect  on  the  present 
ground  of  said  Hauck,  use  said  wall,  or  any  part  thereof,  or  attach 
any  part  of  his  or  their  building  thereto,  then  the  said  Julia  A.  Ross 
shall  be  paid,  without  relief  from  valuation  or  appraisement  laws,  the 
full  value  of  one-half  the  original  cost  of  said  wall  or  walls.  And  it 
is  further  agreed  that  neither  party  shall  have  the  right  to  so  use  any 
part  of  said  wall  or  walls  as  to  weaken  or  endanger  the  same;  and 
that  said  Hauck,  his  heirs,  executors,  administrators,  or  assigns  shall 
not,  in  any  wise  whatever,  use  or  attach  to  said  wall  or  walls  so  to  be 
erected  by  said  Ross,  until  the  said  value  and  costs  of  one-half  there- 
of shall  be  ascertained,  and  paid  or  tendered  to  said  Julia  A.  Ross. 
In  witness  whereof,  we  have  hereunto  set  our  hands  and  seals,  this 
26th  day  of  April,  1875.  [Signed]  John  Hauck.  [Seal.]  Julia  A. 
Ross.     [Seal.]     N.  M.  Ross.     [Seal.]" 

This  agreement  was  duly  acknowledged,  and  recorded  in  the  mis- 
cellaneous records  of  Marion  county,  and  it  is  averred  that  the  appel- 
lant had  actual  notice  of  it  at  the  time  he  purchased. 

The  liability  of  the  appellant  depends  upon  whether  the  contract 
set  out  constituted  a  continuing  covenant,  which  became  annexed  to, 
and  ran  with,  the  Hauck  lot.  If  it  did,  he  is  liable  according  to  its 
terms;   if  it  did  not,  he  is  liable  in  this  form  of  action  for  nothing. 

In  considering  whether  a  covenant  is  one  which  does,  or  does  not, 
run  with  land,  there  are  always  embraced  the  following  inquiries:     (1) 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  477 

Is  the  covenant  one  which,  under  any  circumstances,  may  run  with 
land?  (2)  Was  it  the  intention  of  the  parties,  as  expressed  hi  the 
agreement,  that  it  should  so  run?  Doubtless,  a  covenant  which,  from 
its  character,  might  run  with  the  land,  may  be  so  restricted  in  terms 
as  to  make  it  purely  personal,  and  available  to  the  parties  to  it,  and 
no  other.  So,  too,  a  cove'nant  may  contain  apt  words  to  make  it  a 
continuing  covenant,  yet  if  its  nature  or  the  subject-matter  of  it  is  such 
that  it  does  not  concern  some  interest  or  estate  in  land,  either  exist- 
ing or  created  by  it,  it  cannot  run  with  land.  When, an  instrument 
conveys  or  grants  an  interest  or  right  in  land,  and  at  the  same  time 
contains  a  covenant  in  which  a  right  attached  to  the  estate  or  interest 
granted  is  reserved,  or  when  the  grantee  covenants  that  he  will  do 
some  act  on  the  estate  or  interest  granted  which  will  be  beneficial  to 
the  grantor,  either  as  respects  his  remaining  interest  in  the  lands  out 
of  which  an  interest  is  granted,  or  lands  adjacent  thereto,  such  cove- 
nant is  one  which  may  become  annexed  to,  and  run  with,  the  land,  and 
bind  its  owners  successively.  When  such  grant  is  made,  and  contains 
a  covenant  so  expressed  as  to  show  that  it  was  reasonably  the  intent 
that  it  should  be  continuing,  it  will  be  construed  as  a  covenant  running 
with  the  land.  A  covenant  which  may  run  with  the  land  must  have 
relation  to  the  interest  or  estate  granted,  and  the  act  to  be  done  must 
concern  the  interest  created  or  conveyed.  In  Bally  v.  Wells,  3  Wils. 
25,  it  was  said :  "When  the  thing  to  be  done,  or  omitted  to  be  done, 
concerns  the  lands  or  estate,  that  is  the  medium  which  creates  the 
privity  between  the  plaintiff  and  defendant." 

By  the  contract  under  consideration,  Mrs.  Ross  acquired  the  right 
to  enter  upon  the  Hauck  lot  and  erect,  and  permanently  maintain 
thereon,  a  party-wall.  This  was  a  grant  to  her  of  an  interest  in  land, 
and  was  of  such  a  character  that  a  perpetual  covenant  might  be  an- 
nexed to  it.  Snowden  v.  Wilas,  19  Ind.  10,  81  Am.  Dec.  370:  Haz- 
lett  V.  Sinclair,  76  Ind.  488.  40  Am.  Rep.  254,  1  Smith  Lead.  Cas. 
(8th  Ed.)  161,  162  In  consideration  of  this  grant  to  her,  she  cove- 
nanted to  do  an  act  beneficial  to  the  remaining  interest  of  Hauck. 
That  act  was  the  erection  of  a  wall  so  situated  as  that  one-half  of  it 
should  rest  on  the  margin  of  his  lot  and  the  other  half  on  hers,  thus 
devoting  each  estate  to  the  mutual  support  of  the  party-wall.  She,  at 
the  same  time,  covenanted  that  when  she  should  be  reimbursed  one- 
half  of  the  cost  of  the  wall,  he  or  his  grantees  should  acquire  a  re- 
ciprocal interest  in  her  lot,  and,  in  legal  effect,  become  owner  of  one- 
half  the  party-wall.  This  agreement  created  what  has  been  aptly 
termed  mutual,  or  cross,  easements  in  favor  of  each  in  the  lot  of  the 
other,  and  was  an  arrangement  mutually  beneficial  to  both  properties. 
Fitch  v  Johnson,  104  111.  HI  ;  Roche  v.  Ullman,  Id.  11;  Bronson  v. 
Coffin,  108  Mass.  175,  11  Am.  Rep.  335;  Thomson  v.  Curtis,  28  Iowa, 
229.  It  contaihed,  therefore,  all  the  elements  necessary  to  a  covenant 
capable  of  runnmg  with  the  land.      Hazlett  v.  Sinclair,  supra;    Rich- 


478  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

ardson  v.  Tobey,  121  Mass.  457,  23  Am.  Rep.  283 ;  Standish  v.  Law- 
rence, 111  Mass.  Ill;  Maine  v.  Cumston,  98  Mass.  317;  Savage  v. 
Mason,  3  Cush.  (Mass.)  500;  Brown  v.  McKee,  57  N.  Y.  684;  Ketel- 
tas  V  Penfold,  4  E.  D.  Smith  (N.  Y )  122 ;  Piatt  v.  Eggleston,  20  Ohio 
St.  414 ;  Masury  v.  Southworth,  9  Ohio  St.  340 ;  Bertram  v.  Curtis, 
31  Iowa,  46;  Norfleet  v.  Cromwell,  70  N.'C.  634,  641,  16  Am.  Rep. 
787. 

It  is  apparent,  too,  that  it  was  the  intention  of  the  parties  that  the 
covenant  to  pay  should  run  with  the  land.  The  words  used  in  that 
connection  are  those  usually  and  aptly  employed  for  the  purpose: 
"John  Hauck  hereby  binds  himself,  his  heirs,  executors,  admmistra- 
tors,  and  assigns,  that  whenever,  after  the  erection  of  said  wall  or 
walls  by  the  party  of  the  second  part,  said  Hauck^  his  heirs,  executors, 
administrators,  or  assigns,  shall,  in  any  building  he  or  they  may  erect," 
etc.,  'they  will  pay,"  etc.  A  continuing  covenant  may  exist  without 
the  word  "assigns,"  or  "grantees,"  but  when  these  or  equivalent  words 
are  used,  they  become  persuasive  of  the  intent  of  the  parties.  Van 
Rensselaer  v.  Hays,  19  N.  Y.  68,  75  Am.  Dec.  278  It  was  the  mani- 
fest purpose  of  the  parties  that  the  right  to  receive  payment  for  the 
wall  should  be  personal  to  Mrs.  Ross.  It  was  stipulated  that  payment 
should  be  made  to  Julia  A.  Ross.  It  results  that  the  complaint  was 
sufficient,  and  that  the  second  paragraph  of  answer,  in  which  it  was 
alleged  that  the  wall,  by  reason  of  injuries  sustained  from  fire,  was 
wprth  much  less  than  the  original  cost,  was  insufficient,  and  the  re- 
spective ruHngs  of  the  court  were  not  erroneous.  The  covenant  be- 
ing one  which  ran  with  the  land,  when  the  appellant  availed  himself 
of  its  benefits  he  became  related  to  it  as  the  original  covenantor,  and 
it  became  the  measure  of  his  obligation.  We  think  it  is  fairly  de- 
ducible  from  the  complaint  that  the  appellant  derived  his  title  through 
Hauck. 

Judgment  affirmed,  with  costs.®* 

«>•*  Opinion  of  Mitchell,  C.  J.,  on  rehearing,  Is  omitted. 


Ch.  4)  LEGAL    ENFORCEMENT   OF  COVENANTS  479 


SOUTHWORTH  v.  PERRING. 

(Supreme  Court  of  Kansas,  1905.     71  Kan.  755,  81  Pac.  4S1,  82  Fac.  785,  2 
L.  R.  A.  [N.  S.]  87,  114  Am.  St.  Rep.  527.) 

Mason,  J.''^  In  1885  the  respective  owners  of  two  adjoining  lots 
entered  into  a  written  contract  ®^  by  the  terms  of  which  it  was  agreed 
that  one  of  them,  who  was  about  to  erect  a  brick  and  stone  building 
upon  his  lot,  should  place  one  of  its  walls  upon  the  dividing  line,  and 
that  when  the  other  should  build  he  should  use  this  wall  as  a  division 
wall,  and  pay  him  half  its  value.  The  agreement  concluded  with  these 
words:  "The  parties  hereto  bind  and  obligate  their  heirs,  executors, 
administrators  and  assigns  to  the  fulfillment  of  all  the  terms  and  cove- 
nants of  this  agreement."  The  building  was  accordingly  erected.  In 
course  of  time  the  lot  on  which  the  buildmg  stood  was  conveyed  to 
Hiland  Southworth,  and  the  other  lot  to  E.  L.  Perring.  In  1901  Per- 
ring  built  upon  his  property,  and  made  use  of  the  party  wall.  South- 
worth  then  demanded  of  him  pay  for  half  its  value,  and,  upon  payment 
being  refused,  brought  action  to  enforce  it.  Judgment  was  rendered 
against  the  plaintifif,  who  prosecutes  error. 

95  Parts  of  tlie  opinions  are  omitted. 

9  6  The  contract  is  as  follows:  "This  agreement,  made  and  entered  into 
this  22d  day  of  July,  A.  D.  1885,  by  and  between  G.  W.  C.  Rohrer  and  Mag- 
gie A.  Rohrer,  his  wife,  and  J.  E.  Bonebrake  and  Elvira  A.  Bonebrake,  his 
wife,  of  Abilene.  Kansas,  parties  of  the  first  part,  and  W.  S.  Hodge  and 
I^aura  T.  Hodge,  his  wife,  of  Abilene,  Kansas,  parties  of  the  second  part, 
witnesseth:  That  whereas,  the  parties  of  the  first  part,  are  the  owners  of 
lot  seven  (7)  and  the  parties  of  the  second  part  are  the  owners  of  lot  six 
(li)  in  Henry,  Hodge  &  Reed's  subdivision  of  Thompson  &  McCoy's  addition 
to  the  city  of  Abilene,  Dickinson  county.  Kansas:  Now,  therefore,  the  par- 
ties of  the  first  part  for  and  in  consideration  of  tbe  promises  and  agreements 
of  the  parties  of  the  second  part,  hereinafter  contained,  hereby  grant  and 
give  to  the  parties  of  the  second  part  the  right  and  privilege  to  build  the 
west  wall  of  a  two  story  brick  and  stone  building  on  the  line  separating 
said  lots  in  said  subdivision  from  each  other ;  that  is  to  say  one  half  of  said 
west  wall  of  said  building  to  be  located  on  said  lot  seven  (7).  Said  wall 
shall  be  of  the  following  material  and  dimensions,  to  wit:  The  base  shall  be 
of  stone,  and  be  three  feet  wide  and  ten  feet  high ;  the  first  story  wall  shall 
be  brick,  and  be  sixteen  inches  wide  and  sixteen  feet  high ;  the  second  story 
wall  shall  be  brick,  and  be  twelve  inches  thick  and  ten  feet  high;  all  of 
said  wall  to  extend  the  full  length  of  said  lots  on  said  separating  line.  And 
the  said  parties  of  the  first  part  further  promise  and  agree  that  when  they 
shall  build  on  their  said  lot  seven  (7)  they  will  pay  to  the  said  parties  of  the 
second  part  one-half  the  value  of  said  west  wall  and  use  the  same  as  a  di- 
vision wall ;  the  value  of  the  same  to  be  fixed  by  three  appraisers  to  be  s*e- 
lected,  one  by  the  parties  of  the  first  part,  one  by  the  parties  of  the  second 
part,  the  two  so  chosen  to  select  a  third  one.  The  parties  of  the  second  part 
for  and  in  consideration  of  the  promises  and  agreements  of  the  parties  of 
the  first  part,  as  herein  contained,  do  hereby  promise  and  agree  to  build  said 
wall  on  the  location  and  of  the  materials  and  dimensions  hereinbefore  de- 
scribed and  set  out,  aud,  when  said  parties  of  the  first  part  build  on  their 
said  lot,  to  take  one-half  of  the  value  of  said  wall,  to  be  fixed  and  deter- 
mined as  hereinbefore  provided,  and  permit  the  said  parties  of  the  first  part 
to  use  the  same  as  a  division  wall.  The  parties  hereto  bind  and  obligate 
their  heirs,  executors,  administrators,  and  assigns  to  the  fulfillment  of  all 
the  terms  and  covenants  of  this  agreement." 


480  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

As  appears  from  this  statement,  the  questions  involved  are  (1) 
whether  the  right  to  compensation  provided  for  in  the  contract  under 
the  circumstances  stated  remains  with  the  individual  who  constructed 
the  wall,  or  has  passed  to  Southworth  in  virtue  of  his  being  the  owner 
of  the  lot  upon  which  the  first  building  was  erected,  at  the  time  the 
wall  was  made  use  of  by  the  adjoining  proprietor;  and  (2)  whether 
the  liability  to  pay  a  part  of  the  value  of  the  wall  still  exists  against  the 
original  owner  of  the  second  lot,  who  made  the  contract,  or  has  shifted 
to  its  present  owner,  who  made  use  of  the  wall.     *     *     * 

It  is  generally  conceded  to  be  competent  for  the  parties  to  make  the 
privilege  as  well  as  the  duty  created  by  such  an  agreement  follow  the 
ownership  of  the  land,  and  the  disputed  question  in  each  case  is 
whether  they  have  done  so;  the  conflict  of  authority  arising  upon 
the  interpretation  of  the  language  employed.  Different  conclusions 
as  to  the  intentions  of  the  parties  are  reached  by  different  courts  upon 
substantially  the  same  state  of  facts  according  to  the  view  taken  of 
the  general  nature  of  such  contracts.  A  court  that  regards  them  as 
closely  related  to  the  real  estate,  and  inherently  adapted  to  run  with 
it,  will  be  persuaded  of  the  intention  of  the  parties  that  they  should  do 
so  upon  much  less  evidence  than  would  convince  another  court  that 
considers  them  as  essentially  personal;     *     *     * 

It  is  easier  to  find  support  in  reason  and  authority  for  holding  that 
the  obligation  to  make  payment  runs  with  the  land  than  for  holding 
that  tlie  right  to  receive  payment  does.  The  important  inquiry  in  the 
.present  case  is  therefore  whether  Southworth  is  entitled  to  collect  pay- 
ment for  half  the  value  of  the  wall.  If  he  is  not,  the  judgment  must 
be  affirmed.  If  he  is,  the  same  considerations  that  justify  that  con- 
clusion will  necessarily  compel  also  the  determination  that  Perring  is 
the  person  who  must  make  tlie  payment,  and  the  judgment  must  be 
reversed. 

The  reasoning  in  support  of  the  doctrine  that  the  right  to  demand 
payment  from  the  second  builder  passes  with  each  conveyance  of  the 
land  of  the  first  builder  is  thus  presented  in  the  note  in  89  Am.  St. 
Rep.  941,  to  which  reference  has  already  been  made :  "It  seems  to  us 
that  the  more  reasonable  rule  is  that  an  agreement  between  the  owners 
of  adjoinmg  premises,  whereby  one  is  to  build  a  party  wall  one-half 
on  the  land  of  each,  and  the  other  to  pay  for  one-half  of  its  construc- 
tion when  he  uses  the  wall,  creates  cross-easements  as  to  each  owner, 
running  with  the  land,  with  or  without  notice  to  the  grantee,  and  is 
binding  on  all  persons  succeeding  to  the  estates  to  which  such  ease- 
ment is  appurtenant,  and  that  a  purchaser  of  the  estate  of  an  owner 
so  contracting  must  be  required  to  pay  one-half  of  the  cost  of  the  wall, 
if  it  is  unpaid  for  at  the  time  of  his  purchase,  and  he  afterward  avails 
himself  of  its  benefits.  [Citing  cases.]  Under  this  view,  the  title  to 
the  whole  wall  may  be  regarded  as  appurtenant  to  the  lot  of  the  builder, 
and  so  passes  by  every  conveyance  of  it  until  the  severance  of  the 
one-half  by  the  payment  of  the  purchase  money.    The  sale  of  the  one- 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  481 

half  of  the  wall  does  not  occur,  nor  the  title  to  it  pass,  until  the  pay- 
ment is  made,  and  thus  necessarily  it  is  constructively  a  sale  by  the 
assignee  of  so  much  of  the  wall.  His  right  to  the  purchase  money  is 
not  because  he  is  assignee  of  a  covenant  running  with  the  land,  neces- 
sarily, but  because  he  is  a  vendor  of  so  much  of  the  wall,  for  which 
the  party  using  it  is  liable.  [Citing  cases.]"  With  regard  to  the  effect 
of  the  decisions  bearing  upon  the  question,  the  note  continues :  "Quite 
a  respectable  number  of  well-considered  cases  maintain  the  doctrine 
that  the  right  to  that  portion  of  a  party  wall  resting  on  the  lot  of  an 
adjoining  owner  is  not  personal  to  the  owner  of  the  lot  on  which  the 
building  is  erected,  but  one  running  with  the  land,  and  that  a  convey- 
ance of  the  lot  on  which  the  building  is  erected  passes  to  the  grantee 
the  right  to  recover  of  the  adjacent  owner  the  value  of  one-half  of 
the  wall  when  used  by  him.  [Citing  cases.]  And  this  rule  has  been 
enforced  especially  under  agreements  wherein  the  covenantor  has  cov- 
enanted for  himself,  his  executors,  heirs,  or  assigns."     *     *     * 

Without  attempting  to  declare  what  general  principles  relating  to 
the  question  presented  are  sustained  by  the  greater  number  of  deci- 
sions, we  shall  decide  it  upon  these  considerations :  We  regard  con- 
tracts of  the  character  of  that  here  involved  as  in  their  nature  so 
related  to  the  real  property  affected,  and  so  adapted  to  impose  their 
obligations  and  bestow  their  benefits  upon  the  successors  in  title  of  the 
landowners  by  whorn  they  are  made,  that  the  purpose  that  they  shall 
have  that  effect  is  readily  to  be  inferred  from  the  employment  of 
language  having  any  substantial  tendency  in  that  direction.  In  the 
present  case  we  hold  that  the  use  of  the  clause  making  the  terms  of  the 
contract  binding  upon  the  heirs,  executors,  administrators,  and  as- 
signs of  the  parties  sufficiently  indicates  that  intention.  What  the 
effect  of  the  omission  of  that  provision  might  have  been,  we  do'not  now 
determine. 

The  judgment  is  reversed,  with  directions  to  render  judgment  for 
the  plaintiff.    All  the  Justices  concurring. 

Opinion  denying  petition  for  rehearing. 

Per  Curiam.  *  *  *  jt  must  be  conceded  *  *  *  that  none 
of  the  cases,  in  which  the  right  to  receive  compensation  from  one  us- 
ing a  party  wall  already  built  is  held  to  pass  to  the  grantee  of  the 
builder,  arose  upon  a  contract  precisely  like  the  one  here  involved. 
Nevertheless  the  fact  remains  that  the  weight  of  authority  supports 
the  view  that  party  wall  contracts  may  be  so  drawn  as  to  have  this  ef- 
fect, and  that  in  each  case  the  question  is  whether  such  is  the  inten- 
tion of  the  parties,  as  shown  by  the  language  used.     *     *     * 

If  the  last  paragraph  [of  the  party  wall  contract]  as  contended  by 
the  defendant  in  error,  means  only  that  the  personal  obligations  as- 
sumed by  the  parties  shall  be  binding  upon  their  respective  estates,  then, 
as  said  in  the  motion  for  a  rehearing,  it  expresses  absolutely  nothing 
that  the  law  does  not  imply,  and  is  utterly  without  force.     It  should 

BiG.RlGHTS— 31 


4S2  RIGHTS   IN   THE   LAND   OP  ANOTHER  (Part  2 

not  be  so  treated  if  there  is  a  reasonable  and  natural  construction  avail- 
able that  will  give  it  some  effect.  We  interpret  it  as  in  substance  a 
stipulation  that  the  covenants  of  the  agreement  shall  run  v^ith  the  land. 
It  is  not  expressly  said  that  the  benefits  of  the  contract  shall  accrue 
to  the  heirs,  executors,  administrators,  and  assigns  of  the  builders 
of  the  wall,  but  there  is  an  express  reference  to  the  heirs,  executors, 
administrators,  and  assigns  of  all  the  parties,  and  the  provision  that 
all  the  terms  of  the  contract  shall  be  binding  upon  them  clearly  indi- 
cates an  intention  to  establish  a  permanent  status  between  the  respec- 
tive owners  of  the  two  lots  with  reference  to  the  party  wall.  In  the 
body  of  the  contract  the  reading  is  that  the  first  parties  shall  pay  the 
money  to  the  second  parties ;  no  mention  being  made  of  the  heirs, 
executors,  administrators,  or  assigns  of  either.  But  the  second  parties 
affirmatively  agree  not  only  to  build  the  wall  according  to  certain  speci- 
fications, but  to  take  one-half  the  value,  to  be  fixed  in  a  prescribed 
manner,  and  to  permit  the  first  parties  to  use  it  as  a  division  wall. 
These  agreements  are  by  the  very  letter  of  the  contract  made  binding 
upon  the  heirs,  executors,  administrators,  and  assigns  of  the  second 
parties.  This  shows  that  it  was  within  the  contemplation  of  the  par- 
ties that  the  payment  should  be  made  to  the  successors  in  interest  of 
the  builders  of  the  wall,  quite  as  explicitly  as  though  their  assigns  were 
mentioned  each  time  they  were  themselves  referred  to  in  the  con- 
tract.    *     *     * 

The  motion  for  a  rehearing  is  denied. ^^  ' 


CRAWFORD  V.  KROLLPFEIFFER. 

(Court  of  Appeals  of  New  York,  1909.     195  N.  Y.  185,  88  N.  E.  29,  13."  Am. 

St.  Rep.  783.) 

Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  First  Judicial  Department,  entered  January  22,  1908,  af- 
firming a  judgment  in  favor  of  defendant,  entered  upon  a  dismissal  of 
the  complaint  by  the  court  on  trial  at  Special  Term. 

07 Ace:  Savajre  v.  Mason,  3  Cush.  (Mass.)  500  (1849);  Sandberg  v.  Row- 
land, 51  Wash.  7,  97  Pac.  1087,  130  Am.  St.  Rep.  1077  (1908).  See  Roche  v. 
Ullman,  104  111.  11  (18S2). 

"Provided  always,  and  the  above  second  clause  and  the  rights  of  using 
the  party  wall  thereby  conferred  shall  depend  and  be  contingent  upon  the 
said  Kantenberger,  his  heirs,  executors,  administrators  or  assigns,  paying 
or  causing  to  be  paid,  to  the  said  Brusse,  his  heirs,  executors,  administrators 
or  assigns,  the  one  half  part  of  the  original  cost  of  said  wall."  Brusse  hav- 
ing erected  the  wall,  conveyed  the  lot  to  A.,  and  assigned  his  claims  under 
the  contract  to  B.  Held,  A.  is  entitled  to  collect  one-half  the  cost  of  the 
wall  from  Kantenberger's  grantee,  who  made  use  of  it  as  a  partv  wall. 
Adams  v.  Noble,  120  Mich.  545,  79  N.  W.  810  (1899).  Ace:  LoyarMystic 
Legion  v.  Jones,  73  Neb.  342,  102  N.  W.  621  (1905).  Ace,  where  the  language 
is  of  promise  to  pay  when  the  wall  is  used:  Ferguson  v.  Worrall,  125  Ky. 
619,  101  S.  W.  906,  9  L.  R.  A.  (N.  S.)  1261  (1907).  See,  also,  Piatt  v.  Eggle- 
ston,  20  Ohio  St.  414  (1S70). 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  483 

The  plaintiff  and  Francis  Crawford  were  owners  of  adjoining  par- 
cels of  land,  and  on  February  28,  1899,  entered  into  an  agreement  in 
writing,  plaintiff  being  party  of  the  first  part,  and  Francis  Crawford 
being  party  of  the  second  part,  which  was  duly  recorded  in  the  office 
of  the  register  of  the  county  of  New  York,  in  and  by  which  it  was 
provided  that  the  plaintiff  should  forthwith  construct  a  party  wall, 
the  center  line  of  which  should  be  the'  line  between  the  two  lots.  It 
was  further  provided  that  the  entire  cost  of  constructing  the  wall 
should  be  borne  by  the  plaintiff  or  his  assigns,  and  that  "the  said 
party  of  the  second  part  hereto,  or  his  assigns,  shall  be  at  liberty  at 
'any  time  hereafter  to  use  the  said  wall  for  all  the  purposes  of  a  party 
wall  for  any  house,  which  he,  or  his  assigns,  may  erect  on  said  land 
owned  by  the  said  party  of  the  second  part,  upon  payment  by  the  said 
party  of  the  second  part,  or  his  assigns,  to  the' said  party  of  the  first 
part,  his  legal  representatives  or  assigns,  the  sum  of  five  hundred  dol- 
lars in  cash,  such  payment  to  be  made  when  the  wall  is  used."  It 
was  further  provided  that,  should  it  become  necessary  to  repair  or  to 
rebuild  the  wall  after  the  same  should  be  used  by  the  party  of  the 
second  part,  or  his  assigns,  the  cost  thereof  should  be  borne  equally 
by  the  parties,  or  their  representatives,  heirs,  executors,  administra- 
tors, or  assigns.  The  final  clause  of  the  agreement  was  as  follows : 
'"Fifth.  That  this  agreement  shall  be  binding  on  and  enure  to  the  bene- 
fit of  the  heirs,  executors,  administrators  and  assigns  of  the  respective 
parties  hereto,  and  shall  be  construed  as  a  covenant  running  with  the 
land,"  etc. 

The  plaintiff  built  the  wall  contemplated,  in  connection  with  the 
construction  of  his  building.  Francis  Crawford  died  seised  of  the 
premises  adjoining,  and  his  executors  conveyed  them  to  another — sub- 
ject to  the  party-wall  agreement — who  built  upon  the  same,  using  the 
wall.  The  grantee  of  the  executors  conveyed  the  premises  so  built 
upon  to  the  defendant,  subject  to  the  party-wall  agreement.  This  ac- 
tion was  brought  to  enforce  a  lien  for  the  amount  due  under  the  agree- 
ment for  the  use  of  the  party  wall.  The  complaint  was  dismissed  up- 
on the  merits,  at  the  Special  Term,  and  the  judgment  recovered  by 
the  defendant  was  affirmed  by  the  Appellate  Division  in  the  First  De- 
partment.    The  plaintiff  further  appeals  to  this  court. 

Gray.  J.  (after  stating  the  facts  as  above).  The  Appellate  Division, 
in  affirming  the  judgment  for  the  defendant,  based  its  determination 
upon  the  ground  that  the  covenant  ih  the  party-wall  agreement  did  not 
run  with  the  land,  within  the  authority  of  certain  decisions  of  this 
court,  inasmuch  as  it  did  not  create  any  privity  of  estate.  This  dis- 
tinction was  pointed  out  that  "where  the  agreement  does  not  contem- 
plate the  present  construction  of  a  party  wall,  but  authorizes  its  con- 
struction by  either  party  in  the  future,  the  rule  is  different,  and  the 
covenant  is  said  to  create  a  privity  of  estate  and  to  run  with  the 
land."  We  think  that  this  distinction  is  one  which  has  been  established 
by  our  decisions,  and  that  a  rule  of  property  has  thereby  been  created 


484  RIGHTS  IN   THE   LAND   OF   ANOTHER  (Part  2 

which  should  not  be  departed  from.  See  Mott  v.  Oppenheimer,  135 
N.  Y.  312,  31  N.  E.  1097,  17  L.  R.  A.  409,  and  Sebald  v.  Mulholland, 
155  N.  Y.  455,  50  N.  E.  260. 

Prior  to  the  decision  in  Mott  v.  Oppenheimer,  the  rule  had  become 
firmly  settled  that  where  an  owner  of  land  builds  a  party  wall,  under  an 
agreement  with  his  adjoining  landowner  that,  when  he  or  his  assigns 
shall  use  it,  he  or  they  should  pay  the  value  of  the  party  wall,  the 
covenant  of  payment  was  not  one  which  ran  with  the  land.  See 
Cole  V.  Hughes,  54  N.  Y.  444,  13  Am.  Rep.  611;  Scott  v.  McMillan, 
76  N.  Y.  141 ;  Hart  v.  Lyon,  90  N.  Y.  663.  In  the  case  of  Cole  v. 
Hughes,  upon  which  were  rested  the  decisions  in  Scott  v.  McMillan" 
and  in  Hart  v.  Lyon,  it  was  held,  in  substance,  that  the  party-wall 
agreement,  which  was  entered  into  for  the  purpose  of  permitting  one 
of  the  parties  to  erect  the  wall,  created  no  privity  of  estate  between 
the  contracting  parties,  but  merely  a  privity  of  contract,  leaving  the 
burden  or  liability  of  payment  with  the  original  covenantor.  Those 
cases  were  actions  at  law  to  recover  one-half  of  the  value  of  the 
party  wall  against  subsequent  adjoining  owners,  upon  their  using  the 
wall,  in  which  the  plaintiffs  failed  to  recover.  In  the  last  one,  of 
Hart  v.  Lyon,  the  covenant  for  payment  was  accompanied  in  the 
agreement  by  a  furtlier  covenant  that  the  expense  of  repairing  or  of  re- 
building the  party  wall  should  be  borne  equally  by  the  parties,  their 
heirs  and  assigns.  This  gave  occasion  to  the  court  to  hold  that  the 
latter  covenant  "should  be  construed  as  perpetual  and  as  a  covenant 
running  with  the  land,  while  the  other,  being  personal,  could  not  be  so 
regarded" ;  thus  plainly  intimating  that  there  was  a  distinction  to  be 
observed,  where  the  covenant  was  prospective  in  imposing  a  burden  up- 
on the  land  in  the  hands  of  its  future  owner. 

When  the  case  of  Mott  v.  Oppenheimer  was  decided,  the  rule  of 
the  cases  referred  to  was  not  sought  to  be  disturbed,  and  the  decision 
proceeded  upon  the  difference  in  the  situation  and  in  the  agreement 
of  the  parties.  There,  neither  of  the  parties  to  the  agreement,  ap- 
parently, was  about  to  build,  and  they  made  it  with  reference  to 
the  future.  They  were  adjoining  owners  of  unimproved  lots,  and 
through  the  agreement  obtained  the  necessary  authority  for  the  con- 
struction of  a  party  wall  thereafter  by  either,  or  by  the  successors  in 
interest  of  either,  and  for  the  use  of  the  same  by  the  then  adjoining 
owner  upon  his  paying  one-half  of  the  then  value  of  the  portion  used. 
Subsequently,  and  when  the  lands  had  come  into  other  ownerships, 
such  a  party  wall  was  built,  and  the  plaintiff,  who  had  acquired  the 
premises  so  improved,  brought  the  action  against  the  adjoining  land- 
owner, and  was  given  a  lien  upon  the  defendant's  premises  for  the 
yalue  of  one-half  of  the  wall.  It  was  held  tliat  the  covenant  of  the 
parties  to  the  agreement  was  not  personal,  and  that  it  concerned  the 
land  and  became  annexed  to  the  estate.  "The  effect  of  the  contract," 
it  was  said,  "clearly  was  to  grant,  or  to  create,  an  interest  in  the  prem- 
ises described." 


Ch.  4)  LEGAL    ENFORCEMENT   OF   COVKNANTS  485 

Later,  in  the  case  of  Sebald  v.  Mulholland,  155  N.  Y.  455,  464,  50 
N.  E.  260,  262,  the  case  of  Mott  v.  Oppenheimer  was  considered,  and, 
adverting  to  the  fact  that  it  was  not  proposed,  in  its  decision,  to  change 
the  rule  of  the  earlier  cases,  it  was  held  that  it  was  distinguishable  in 
its  facts.  That  disti-nction  was  pointed  out  as  being  in  this ;  that 
"the  provisions  of  the  agreement  in  that  case  related  to  the  future  use 
of  the  property,  and  there  was  no  intention  to  provide  for  any  present 
or  existing  situation";  that  it  was  "made  with  the  view  that  such  a 
contract  would  be  beneficial  to  the  land  of  both  parties,  and  would 
bind  it  when  the  conditions  contemplated  should  subsequently  arise. 
*  *  *  But  in  the  other  cases,  *  *  *  as  well  as  in  the  case  at 
bar,  the  agreement  was  in  effect  a  personal  covenant  between  the 
parties."  The  agreement  in  Sebald  v.  Mulholland  was  made  between 
one,  who  was  "about  to  erect  a  building  upon  his  lot,"  and  another, 
owning  the  adjoining  land,  who  agreed  for  himself  and  "his  personal 
1-epresentatives,"  whenever  he  or  they  might  desire  to  use  the  wall, 
to  pay  the  due  proportionate  expense  of  its  construction.  The  agree- 
ment differed  from  that  in  Mott  v.  Oppenheimer,  not  only  in  the  re- 
spect dwelt  upon  in  the  opinion,  but  also  in  the  fact  that  the  covenant 
of  payment  was  made  by  the  adjoining  lot  owner  for  himself  and  "his 
personal  representatives." 

Though  I  had  written  the  opinion  for  the  court  in  Mott  v.  Oppen- 
heimer, I  expressed  myself  as  concurring  with  Judge  Martin,  who 
wrote  in  Sebald  v.  Mulholland,  upon  the  ground  that  the  contract 
then  in  question  required  a  differen,t  construction  from  that  in  Mott 
V.  Oppei'iheimer.  It  was  different  in  the  respects  noted.  The  result 
of  this  last  decision  was  to  establish  a  test  by  which  it  should  be 
ascertained  when  the  covenant  in  a  party-wall  agreement  ran  with  the 
land.  The  Appellate  Division  Justices  have  correctly  pronounced  upon 
the  rule  as  it  was  left  by  the  decisions  mentioned,  and,  as  I  have  said, 
it  being  a  rule  of  property,  it  should  stand. 

The  judgment  appealed  from  should  be  affirmed. 

CuLLEN,  C.  J.,  and  Edward  T.  BartlEtt,  Vaxn,  Willard  Bart- 
LE^T,  and  Chase,  JJ.,  concur.    Haight,  J.,  not  voting. 

Judgment  affinned^  with  costs. ^^ 

9 8 A.  and  X.,  owners  of  adjoining  lots,  made  a  party  wall  agreement.  A. 
erected  a  wall  as  provided.  X.  conveyed  to  Y.  Y.  used  the  wall  as  a  party 
wall.  A.  brought  action  against  Y.  for  the  value  of  one  half  the  wall,  and* 
the  case  was  submitted  upon  an  agreed  statement  of  fac-t.  The  court  said: 
"But  even  if,  in  accordance  with  the  decision  in  Cole  v.  Ilughes,  54  N.  Y. 
444  [13  Am.  Rep.  611  (1873)],  cited  for  the  defendant,  the  agreement  to  pay 
money  should  be  considered  a  personal  covenant  only,  not  running  with  the 
land  of  the  grantors,  yet  the  plaintiff  clearly  had  a  right  of  property  in  the 
waU  which  she  built  in  the  exercise  of  the  right  which  had  been  granted  to 
ber  in  that  land.  Maine  v.  Cuniston,  98  Mass.  317  [1867] ;  Standish  v.  l^aw- 
rence.  Ill  Mass.  Ill  [1S72].  The  defendant,  having  made  use  of  the  wall 
so  built,  cannot  deny  the  plaintiff's  right  therein,  and  is  bound  to  compen- 
sate her  for  such  use,  either  according  to  the  covenant  in  the  deed  from  his 
gr&ntors  to  the  plaintiff,  or  according  to  the  value  of  the  wall.  We  need  not 
consider  what  the  amount  of  such  compensation  should  be,  in  the  absence 


486  RIGHTS   IX   THE   LAND   OF   ANOTHER  (Part  2 


LINCOLN  V.   BURRAGE. 

(Supreme  Judicial  Court  of  Massachusetts,  1901.     177  Mass.  378,  58  N.  E. 

G7,   52  L.   K.  A.   110.) 

Appeal  from  a  decree  of  the  Superior  Court  sustaining  the  defend- 
ant's demurrer  to  the  declaration.    Writ  dated  July  6,  1899. 

The  declaration  alleged  that  the  plaintiffs,  as  executors  of  the  will 
of  Frank  N.  Thayer,  deceased,  by  virtue  of  the  powers  conferred 
upon  them  under  said  will,  conveyed  to  Franklin  T.  Rose  by  deed 
dated  November  9,  1883,  a  certain  parcel  of  land  in  Boston  on  the 
corner  of  Commonwealth  Avenue  and  Hereford  Street,  bounded  west- 
erly on  land  conveyed  by  said  executors  to  Richard  C.  Flower,  through 
the  middle  of  the  iDrick  party  wall ;  "that  in  said  deed  it  was  provided 
as  follows :  'Said  grantee,  by  accepting  this  deed,  agrees  for  himself, 
and  his  heirs,  and  assigns,  to  pay  to  said  executors,  or  their  successors 
in  said  trust  from  time  to  time,  the  value  at  the  time  of  use  of  so  much 
of  said  p^rty  wall  standing  on  the  described  premises,  including  the  pil- 
ing and  foundations  under  the  same,  as  he  or  they  may  at  any  time 
use.' 

"At  the  time  of  said  conveyance  there  stood  upon  the  premises 
described  in  said  deed,  one  half  of  a  party  wall  constructed  by  the  said 
Thayer  at  his  own  expense,  but  said  premises  were  not  otherwise 
built  upon,  and  so  remained  until  the  same  were  purchased  by  the  de- 
fendant. 

"Thereafter,  on  or  about  January  17,  1899,  the  defendant  purchased 
the  said  lot  of  land,  and  also  the  adjoining  lot  conveyed  by  said  exec- 
utors to  said  Flower,  as  aforesaid,  and  the  same  were  conveyed  to  her, 
subject  to  the  agreement  above  recited. 

"The  defendant  then  proceeded  to  tear  down  the  dwelling  house 
erected  on  the  said  adjoining  lot,  and  to  construct  a  building  covering 

of  agreement  between  the  parties  to  this  action,  because  these  parties,  in  tlie 
case  stated,  liave  themselves  assessed  tlie  amount,  by  agreeing  upon  the  sura 
which  the  plaintiff  shall  recover  if  she  can  .maintain  her  action."  Kichard- 
s6n  V.  Tobev.  121  Mass.  457,  459,  23  Am.  Rep.  283  (1877). 

See,  also,  Irving  v.  Turnbull,  [1900]  2  Q.  B.  129  (1899). 

"Where  a  party  wall  is  erected  by  agreement,  resting  in  part  on  the  lands 
of  two  adjoining  owners,  with  a  covenant  that  the  owner  erecting  the  wall 
shall  have  compensation  for  a  portion  of  the  expense  from  the  otlier  owner 
when  the  latter  shall  make  use  of  the  wall,  the  obligation  to  pay  arises  only 
when  sudi  use  is  made.  The  covenant  runs  with  the  land  as  against  a 
grantee  of  such  adjoining  owner,  and  the  grantee  who  first  avails  himself 
of  the  benefits  of  the  wall  becomes  bound  to  pay  his  share  under  his  gran- 
tor's covenant  to  the  owner,  who  has  erected  such  wall,-  and  there  is  no  lia- 
bility on  the  part  of  the  covenanting  grantor,  who  has  made  no  use  of  the 
wall,  to  pay  the  stipulated  share  of  the  expense  either  to  the  adjoining  own- 
er with  whom  the  covenant  was  made  and  who  erected  the  wall,  or  to  the 
grantee  who  has  first  availed  himself  of  its  benefits."  Percival  v.  Colonial 
Invfstmeut  Co.,  140  Iowa,  275,  278,  115  N.  W.  911,  24  L.  R.  A.  (N.  H.)  293 
(1908). 

See.  also,  Home  v.  Macon  Tel.  Pub.  Co.,  142  Ga.  489,  83  S.  E.  204,  Ann. 
Cas.  1916B,  1212  (1914). 


Cll.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  487 

both  of  the  said  lots,  and  to  erect  a  wall  upon  the  said  foundations,  and 
in  place  of  the  said  party  wall. 

"That  the  defendant  was  bound  b)'  the  terms  of  said  agreement,  and 
having  torn  down  the  said  party  wall  for  the  purpose  of  erecting  a 
building  on  said  premises,  and  having  used  the  piling  and  foundations 
under  the  same,  for  the  purpose  of  erecting  another  wall  thereon,  be- 
came liable  to  the  plaintiffs  for  the  value  of  the  whole  [one-half]  of 
said  party  wall,  piling  and  foundations,  which,  at  the  time  of  use 
thereof,  were  of  the  value  of  $1,500." 

The  defendant  demurred  to  the  declaration. 

The  case  was  heard  in  the  Superior  Court  by  Bell,  J.,  who  sustained 
the  demurrer  and  ordered  judgment  for  the  defendant;  and  the  plain- 
tiffs appealed  to  this  court. 

Holmes,  C.  J.*^  The  acceptance  by  Rose  of  the  conveyance  to 
him  implied  a  promise  by  him  to  pay  for  the  party  wall  at  the  time 
of  use.  Although  not  a  covenant,  under  our  decisions  such  a  promise 
might  be  held,  in  equity,  if  not  at  law,  to  follow  the  analogy  of  cove- 
nants running  with  the  land  in  a  case  to  which  that  analogy  would  ap- 
ply. Manufacturing  Co.  v.  Staples,  164  Mass.  319,  41  N.  E.  441,  29 
L.  R.  A.  500.  But  it  is  most  unusual  to  see  a  covenant  under  which  the 
rights  are  held  in  gross  and  the  burdens  go  with  the  land.  We 
suspect  that  it  would  be  hard  to  find  in  the  books  another  case  like 
Middlefield  v.  Knitting  Co.,  160  Mass.  267,  272,  35  N.  E.  780.  Com- 
pare, further,  Walsh  v.  Packard,  165  Mass.  189,  192,  42  N.  E.  577,  40 
L.  R.  A.  321,  52  Am.  St.  Rep.  508.  Leaving  cases  of  landlord  and 
tenant  on  one  side,  commonly,  where  t"he  burden  of  a  covenant  goes 
with  land,  the  covenant  either  creates  a  servitude,  or  a  restriction  in 
the  nature  of  ^a  servitude,  in  favor  of  a  neighboring  parcel,  or  else  is 
in  some  way  incident  to  and  inseparable  from  such  a  servitude,  or,  if 
attached  to  the  dominant  estate,  appears  to  be  the  quid  pro  quo  for 
the  easement  enjoyed.  Savage  v.  Mason,  3  Cush.  500;  Richardson 
V.  Tobey,  121  Mass.  457,  23  Am.  Rep.  283 ;  Norcross  v.  James,  140 
Mass.  188,  191,  2  N.  E.  946;  King  v.  Wight,  155  Mass.  444,  29  N.  E. 
644;  Manufacturing  Co.  v.  Staples,  164  Mass.  319,  41  N.  E.  441,  29 
L.  R.  A.  500., 

In  the  present  case  Rose's  assumpsit  did  not  purport  to  be  for  the 
benefit  of  the  owner  for  the  time  being  of  the  adjoining  land.  The 
deed  which  he  accepted  showed  that  his  grantors  had  conveyed  that 
land  so  that  they  could  not  annex  a  promise  to  it,  and  disclosed  no  in- 
terest on  their  part  to  secure  compensation  for  use  of  the  party  wall 
to  their  grantee.  Oti  the  contrary,  the  stipulation  is  in  favor  of  the 
executors  making  the  conveyance,  "or  the  successors  in  said  trust  from 
time  to  time,"  showing  in  the  clearest  way  that  the  benefit  of  the 
promise  was  intended  to  be  personal,  and  a  postponed  compensation  to 
the  estate  for  the  use  of  a  wall  which  the  testator  had  built.    This  is 

»9  Part  of  the  opiuiou  is  omitted. 


488  RIGHTS   IN   THE   LAND   OF   ANOTHER  ,      (Part  2 

the  construction  upon  which  this  action  is  brought.  But  if  the  promise 
is  personal  on  the  side  of  the  benefit,  no  reason  whatever  is  shown 
for  departing  from  the  tradition  of  the  law  in  order  to  make  it  follow 
the  land  with  its  burden,  as  we  already  have  said.  Indeed,  the  words 
of  Rose's  promise  are  satisfied  if  they  be  read  as  a  personal  promise  to 
pay  whenever  he  or  his  assigns  may  use  the  wall.  Furthermore,  it 
never  is  to  be  forgotten  that  under  all  circumstances  it  is  an  anomaly 
requiring  explanation  when  an  active  duty  is  other  than  personal,  and 
is  attached  to  land.  See  Norcross  v.  James,  140  Mass.  188-190,  2 
N.  E.  946;  Cole  v.  Hughes,  54  N.  Y.  444,  13  Am.  Rep.  611.  This 
difficulty  is  felt  so  strongly  in  England  that,  when  a  duty  to  pay  for  a 
party  wall  is  recognized  between  owners  who  have  not  contracted  to- 
gether personally,  it  seems  likely  that  it  will  be  worked  out  in  terms 
of  implied  contract,  as  it  was  in  Irving  v.  Turnbull,  [1900]  2  Q.  B. 
129.  See,  also,  Maine  v.  Cumston,  98  Mass.  317,  320;  Standish  v. 
Lawrence,  111  Mass.  Ill,  114;  Richardson  v.  Tobey,  121  Mass.  457, 
459,  460,  23  Am.  Rep.  283. 

The  plaintiffs  put  their  argument  in  the  form  last  suggested.  But 
we  do  not  see  any  reason  why  a  change  in  the  fiction  should  enlarge 
their  rights.  In  fact,  the  defendant  did  not  contract  with  the  plain- 
tiffs. Any  ground  upon  which  she  should  be  held  liable  in  contract 
would  be  a  fiction.  In  the  present  case,  where  the  plaintiffs  have  no  in- 
terest in  the  property  used  by  the  defendant,  it  is  no  better  to  say  that 
a  contract  is  implied  than  to  say  that  it  runs  with  the  land.  If  a  cove- 
nant by  Rose  in  the  form  of  the  stipulation  set  forth  would  not  have 
bound  his  assigns,  even  under  our  law,  which  permits  the  burden  of 
such  covenants  to  be  transferred,  and  if,  therefore,  there  was  no  obliga- 
tion on  the  defendant  arising  from  Rose's  simple  contract  on  the  analo- 
gy to  such  a  covenant,  we  conceive  that  we  should  be  unwarranted  in 
saying  that  a  contract  by  the  defendant  was  to  be  implied  simply  from 
the  facts  of  that  same  contract  by  Rose  and  the  defendant's  succession 
to  his  title. 

It  is  not  quite  clear  that  there  are  any  further  facts  which  might 
strengthen  the  plaintiffs'  case  on  this  latter  ground  of  implied  contract. 
It  is  not  quite  clear  that  the  defendant  actually  contracted  even  with 
her  grantor.  It  does  not  appear  that  her  grantor  was  Rose.  If  both 
these  facts  be  assumed  to  have  been  in  the  form  most  favorable  for 
the  plaintiffs,  while  it  may  be  that  slight  circumstances  would  be  laid 
hold  of  to  avoid  circuity,  and  to  establish  a  privity  of  contract  be- 
tween the  parties  to  this  suit,  still  it  would  be  difficult  to  imply  a  con- 
tract in  favor  of  the  plaintiffs  simply  on  the  ground  that  a  contract 
was  made  with  somebody  else.  In  the  cases  which  have  gone  fur- 
thest, the  first  step  has  been  that  both  lots  have  been  conveyed  under  an 
arrangement  with  contemplated  reciprocal  benefits  and  burdens  be- 
tween the  two.  Maine  v.  Cumston,  Irving  v.  Turnbull,  ubi  su- 
pra.    *     *     * 

Judgment  qffirmed. 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  489 

II.  Agreements  Not  Under  Seal 

BURBANK  V.  PILLSBURY. 
(Supreme  Court  of  New  Hampshire,  1869.    48  N.  H.  475,  97  Am.  Dec.  638.) 

[The  facts  are  stated  ante,  p.  439.] 

Smith,  J."°  If  Apphia  Martin  accepted  the  deed  of  Johnston, 
containing  a  stipulation  that  certain  services  should  be  performed  by 
her,  she  thereby  (if  she  had  legal  capacity  to  contract),  impliedly  prom- 
ised to  perform  these  services,  and  an  action  of  assumpsit  might  have 
been  maintained  against  her  for  non-performance.  "A  deed  poll, 
when  accepted  by  the  grantee,  becomes  the  mutual  act  of  the  parties, 
and  a  stipulation  on  the  part  of  the  grantee,  though  it  cannot  be  de- 
clared upon  as  his  deed,  yet  by  force  of  his  acceptance,  is  a  valid  con- 
tract on  his  part,  by  which  a  right  may  be  reserved  or  granted,  or 
upon  which  a  suit  may  be  maintained."  This  language  was  used  by 
Shaw,  C.  J.,  in  Newell  v.  Hill,  2  Mete.  (Mass.)  180.  in  reference  to  a 
deed  poll  containing  a  clause  almost  precisely  similar  to  that  now  un- 
der consideration ;  and  there  are  various  other  cases  where  the  same 
general  principle  has  been  enunciated;  Goodwin  v.  Gilbert,  9  Mass. 
510;  Minor  v.  Deland,  18  Pick.  (Mass.)  266;  Pike  v.  Brown,  7 
Cush.  (Mass.)  133  ;  Guild  v.  Leonard,  18  Pick.  (Mass.)  511 ;  Maine  v. 
Cumston,  98  Mass.  317,  Bigelow,  C.  J.,  pp.  319,  320;  Atlantic  Dock 
Co.  V.  Leavitt,  50  Barb.  (N.  Y.)  135 ;  Hufl:'  v.  Nickerson,  27  Me.  106. 
Indeed,  there  are  authorities  which  go  so  far  as  to  maintain  that  an 
action  of  covenant  will  lie  against  a  party  who  accepts  such  a  deed. 
It  is  unnecessary  to  consider  here  the  correctness  of  this  position; 
for  if  the  contract  entered  into  by  a  grantee  who  accepts  such  a  deed 
poll  as  Johnston's  is  not  a  technical  "covenant,"  it  is  none  the  less 
a  binding  obligation,  the  only  difference  being  in  the  remedy;  see  3 
Blackstone's  Com.  158;  and  the  authorities  which  hold  that  an  action 
of  covenant  will  lie  are  referred  to  here  only  by  way  of  showing  that 
the  obligation  created  by  the  acceptance  of  such  a  deed  is  so  nearly 
akin  to  a  covenant  executed  by  the  grantee  that  it  has  been  seriously 
contended  that  there  is  not  even  a  technical,  much  less  a  substantial, 
diflFerence  between  them.    *    *     * 

The  next  question  to  be  considered  is  whether  the  obligation  thus 
entered  into  by  the  original  grantee  is  binding  on  her  grantees  with 
notice,  or,  in  other  words,  whether  the  burden  of  the  agreement  runs 
with  the  land,  so  far  as  those  having  notice  are  concerned. 

Is  the  obligation  enforceable  at  bar  against  the  subsequent  purchas- 
ers with  notice? 

The  agreement  related  to  the  land  and  contemplated  acts  to  be 
performed  upon  the  land.     The  word  "assigns"  is  used,  and  the  acts 

100  Part  of  the  opiuion  is  omitted. 


490  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

to  be  performed  are  of  a  "continuing"  nature.  Probably  the  amount 
of  the  consideration  paid  for  the  original  conveyance  was  less  than  it 
would  have  been  if  this  stipulation  had  not  been  inserted  in  the 
deed.    *    *    * 

Upon  principle  we  should  say  that  a  subsequent  grantee,  purchasing 
with  the  notice  which  registry  gives  of  such  a  stipulation,  impliedly 
enters  into  the  same  engagement  as  the  first  vendee,  and  is  liable  in 
assumpsit  for  non-performance  of  the  stipulation.  We  think  that  the 
first  grantee  in  a  deed  poll  like  the  present  stands  on  the  same  footing 
with  a  devisee  taking  property  under  a  devise  imposing  a  burden  in  fa- 
vor ^f  a  third  party.  In  Pike  v.  Brown,  7  Cush.  (Mass.)  133,  p.  135, 
Shaw,  C.  J.,  expressly  asserts  that  a  devise  "stands  on  the  same  foot- 
ing with  a  deed  poll."  In  Veazey  v.  Whitehouse,  10  N.  PI.  409,  it  was 
held  that  assumpsit  could  be  maintained  against  the  grantee  of  a  dev- 
isee for  non-performance  of  the  duties  imposed  by  the  devise.  The 
principle  of  that  decision  would  seem  to  render  the  present  plaintiff 
liable  to  an  action  of  assumpsit  at  the  suit  of  Johnston  for  not  main- 
taining the  fence.     *     *     * 

Our  conclusion  is  that  the  stipulation  in  Johnston's  deed  is  so  far 
binding  upon  persons  holding  under  that  source  of  title  that  assumpsit 
may  be  maintained  against  a  subsequent  grantee  with  notice  (actual 
or  constructive)  if  he  fails  to  perform  the  service  stipulated  for. 

If  the  coverture  of  Apphia  Martin  prevented  any  legal  remedy 
against  her,  it  does  not  bar  the  maintenance  of  an  action  of  assumpsit 
against  her  grantees  who  took  the  land  with  notice  of  the  stipulation 
that  they  should  maintain  the  fence.     *     *     * 

Unless  the  defendant  elects  to  demur,  or  confess,  there  must  be 

Judgment  for  plaintiff. ^''^ 


KENNEDY  v.  OWEN. 

(Supreme  Judicial  Court  of  Massachusetts,   18S4.     136   Mass.   199.) 

Contract.  The  declaration  alleged  that  the  plaintiff,  on  July  31, 
1880,  was  the  owner  in  fee  and  occupant  of  a  certain  tract  of  improved 
land  in  Greenfield;  that  the  defendant  was  the  owner  in  fee  and  oc- 
cupant of  an  adjoining  tract  of  improved  land;  that  both  of  these 
tracts  of  land  were  formerly  one  undivided  lot,  of  which  one  Harding 
C.  Woodard  was  seized  in  fee;  that  Woodard,  on  July  18,  1868,  con- 
veyed to  one  Jesse  A.  Coombs  the  defendant's  land,  by  a  deed  duly 
recorded  and  containing  the  following  condition:  "that  the  said 
Coombs,  his  heirs  and  assigns,  shall  make  and  maintain  all  fences 
around  the  granted  premises;"  that  afterwards  Coombs,  under  and 
by  virtue  of  said  condition,  made  and  erected  a  partition  fence  between 

101  Ace:  Georgia  Southeru  R.  Co.  v.  Reeves,  61  Ga.  492  (ISSO).  .See  Hins- 
lale  V.  Humphrey,  15  Conu.  4.31  (1843),  ante,  p.  412. 


Ch.  4)  LEGAL  ENFORCEMENT  OF  COVENANTS  41)1 

the  land  so  conveyed  to  him  and  the  remaining  part  of  said  lot,  which 
is  the  same  as  the  plaintiff's  land ;  tliat  said  fence  was  kept  up  and 
maintained  by  Coombs  while  he  remained  the  owner  of  said  land ; 
that  on  September  7,  1868,  Coombs  conveyed  said  land  in  fee  to  the 
defendant,  by  deed  duly  recorded  and  containing  the  following  condi- 
tion: "that  the  said  Owen  is  to  make  and  maintain  all  the  fences 
around  the  granted  premises;"  that  Woodard,  on  February  7,  1870. 
by  deed  duly  recorded,  conveyed  in  fee  the  remaining  part  of  said 
lot,  separated  by  the  said  fence,  to  the  plaintiff;  that,  under  and  by 
virtue  of  said  condition,  the  defendant,  as  owner  of  said  land  ad- 
joining the  land  of  the  plaintiff',  became  bound  by  law  to  keep  up  and 
maintain  the  fence;  that  on  July  31,  1880,  said  fence  had  become 
ruinous  and  out  of  repair  by  the  neglect  and  refusal  of  the  defendant 
to  maintain  the  same,  though  repeatedly  requested  to  do  so;  and  that 
the  fence  so  remained  out  of  repair  and  unmaintained,  by  the  defend- 
ant's neglect,  during  the  period  of  the  defendant's  ownership  of  said 
land,  and  until  she  conveyed  away  her  interest  therein,  on  August  14, 
1880.     Writ  dated  March  4,  1882. 

The  defendant  demurred  to  the  declaration,  on  the  ground  that  it 
set  forth  no  legal  cause  of  action.  The  Superior  Court  sustained  the 
demurrer,  and  ordered  judgment  for  the  defendant;  and  the  plaintiff 
appealed  to  this  court. 

C.  Allen,  J.  The  particular  question  which  is  -presented  by  the 
demurrer  in  this  case  is  settled  by  the  recent  decision  in  jMartin  v. 
Drinan,  128  Mass.  515,  where  it  was  held  that  a  stipulation  in  a  deed 
poll,  that  the  grantee  agreed,  for  himself,  his  heirs  and  assigns,  to 
keep  in  repair  a  building  on  adjoining  land  of  the  grantor,  was  not 
a  covenant,  and  did  not  run  with  the  land,  and  that  an  assign  of  the 
grantor  could  not  maintain  an  action  of  contract  against  the  grantee 
for  a  failure  to  perform  the  agreement.  The  present  action  is  in  form 
an  action  of  contract,  and  the  plaintiff  is  a  purchaser  from,  and  as- 
sign of,  the  grantor  in  the  deed  which  contains  the  stipulation  upon 
which  the  plaintiff  relies,  and,  under  the  decision  referred  to,  cannot 
maintain  an  action  of  contract  against  the  grantee  in  the  deed,  es- 
pecially not  against  the  defendant,  who  is  a  purchaser  from  said 
grantee. 

The  plaintiff,  however,  without  apparently  adverting  to  the  fact 
that  his  action  is  in  form  an  action  of  contract,  has  put  his  argument 
upon  the  broader  ground  that  he  is  in  some  form  entitled  to  a  remedy 
against  the  defendant  upon  the  facts  stated  in  his  declaration ;  and 
we  have  considered  this  broader  question,  which  involves  an  examina- 
tion of  the  nature  of  the  right  created  by  the  provision  of  the  deed 
which  is  set  forth,  and  of  the  appropriate  remedy  for  a  violation  of 
such  right. 

The  plaintiff  avers  that  the  deed  of  the  original  grantor,  Wood- 
ard, was  "with  the  condition  following,  to  wit,  'that  the  said  Coombs 
[the  grantee],  his  heirs  and  assigns,  shall  make  and  maintain  all  fences 


492  RIGHTS   IN  THE  LAND   OF   ANOTHER  (Part  2 

around  the  granted  premises ;'  "  and  that  the  deed  from  Coombs  to 
the  defendant  was  with  a  condition  substantially  similar.  The  deed 
itself  is  not  before  us,  by  copy  or  otherwise,  so  that  we  have  no  op- 
portunity of  looking  at  the  language  of  this. special  provision,  in  con- 
nection with  the  rest  of  the  deed.  If  the  plaintiff's  averment  were  to 
be  taken  as  showing  that  the  deed  conveyed  an  estate  on  condition 
subsequent,  the  question  would  arise  whether  the  plaintiff  could  in 
any  form,  avail  himself  of  a  breach  of  such  condition.  But  it  seems 
more  probable  that  the  provision  of  the  deed  was  not  intended  to  have 
that  effect,  and  that  it  was  merely  designed  to  express  an  obligation 
or  undertaking  to  make  and  maintain  the  fences ;  and  such  appears 
to  be  the  construction  put  upon  it  by  the  plaintiff's  counsel.  See  Ayl- 
ing  v.  Kramer,  133  Mass.  12,  13. 

It  is  also  clear  that  the  stipulation  is  not  technically  a  covenant, 
running  with  the  land.  The  grantee  sealed  nothing.  In  Parish  v. 
Whitney,  3  Gray,  516,  it  was  held  that  a  stipulation  in  a  deed  poll, 
that  the  grantee,  his, heirs  and  assigns,  should  erect  and  perpetually 
maintain  a  fence  between  the  land  granted  and  other  land  of  the  gran- 
tor, did  not  create  an  incumbrance  on  the  granted  premises,  within 
the  meaning  of  a  covenant  against  incumbrances  in  a  deed  subsequently 
made  by  the  grantee.  The  court'  said,  that  it  was  not  a  reservation 
out  of  the  estate  granted,  nor  a  condition,  nor  a  covenant,  running  with 
the  land,  or  otherwise ;  but  that  it  was  only  a  personal  agreement  of 
the  grantee,  evidenced  by  his  acceptance  of  the  deed,  which  might  bind 
him  and  his  legal  representatives,  but  did  not  affect  the  estate.  That 
case  was  criticised  in  Burbank  v.  Pilsbury,  48  N.  H.  475,  97  Am.  Dec. 
633,  where  it  was  held  that  such  an  agreement  was  of  the  same  ef- 
fect as  an  express  covenant,  signed  and  sealed  by  the  grantee ;  that  it 
would  run  with  the  land;  that  it  created  an  incumbrance  upon  the 
land;  and  by  implication  it  was  recognized  that  a  subsequent  gran- 
tee would  be  liable  to  the  original  grantor  in  an  action  of  assumpsit  on 
the  agreement.  No  question  arose  there,  or  could  arise,  whether  an 
assignee  of  the  grantor  could  maintain  such  action.  A  decision  sub- 
stantially similar  was  made  in  Kellogg  v.  Robinson,  6  Vt.  276,  27  Am. 
Dec.  550,  where  the  stipulation  was  regarded  as  a  covenant,  or  a 
condition ;  and  it  was  held  that  it  created  an  incumbrance  on  the 
land,  within  the  meaning  of  a  covenant  against  incumbrances. 

In  Bronson  v.  Coffin,  108  Mass.  175,  11  Am.  Rep.  335,  it  was  held 
that  a  formal  covenant  by  the  grantor,  in  a  deed  of  portion  of  his 
land,  that  he  and  his  heirs  and  assigns  would  make  and  maintain  a 
fence  between  the  land  granted  and  his  remaining  land,  with  a  provision 
that  this  covenant  should  be  perpetual  and  obligatory  upon  all  per- 
sons who  should  become  owners  of  the  land  adjoining  to  that  grant- 
ed, created  an  interest  in  the  nature  of  an  easement,  and  ran  with 
the  land,  and  created  an  incumbrance  upon  the  land,  within 
the  meaning  of  a  covenant  against  incumbrances  in  a  subsequent  deed 
of  such  adjoining  land ;   and,  in  referring  to  Parish  v.  Whitney,  the 


Ch.  4)  LEGAL   ENFORCEMENT   OF   COVENANTS  493 

court,  by  Mr.  Justice  Gray,  incidentally  remarked,  "If  that  decision 
can  be  supported,  it  must  be  as  falling  within  the  rules  that  no  ease- 
ment in  or  right  affecting  real  estate  can  be  created  by  contract  of 
the  party,  except  by  deed,  and  that  an  agreement  not  sealed  by  the 
party  who  is  to  perform  it  cannot  create  a  covenant  or  run  with  the 
land."  The  above  decisions  in  New  Hampshire  and  Vermont  were 
cited  and  commented  upon. 

In  the  later  case  of  Martin  v.  Drinan  [128  Mass.  515],  as  has  been 
seen,  it  was  explicitly  held  by  this  court,  in  an  opinion  delivered  by 
Chief  Justice  Gray,  that  such  an  agreement,  implied  or  shown  by  the 
acceptance  of  a  deed  poll,  is  not  a  covenant;  and  Parish  v.  Whitney 
was  cited,  with  apparently  a  full  approval  of  the  decision.  It  is  plain 
that  an  agreement  not  under  seal  cannot,  technically  speaking,  run 
with  the  land.    *    *     * 

It  has  never  been  held  or  considered  in  Massachusetts,  so  far  as 
we  are  aware,  that  a  stipulation  like  that  contained  in  the  deeds  on 
which  the  plaintiff  relies  would  have  the  effect  to  create  an  easement 
of  this  peculiar  description,  the  right  to  which  could  be  asserted  or 
protected  by  an  action  at  law.  It  certainly  is  not  an  exception  out 
of  the  estate  granted.  It  is  not  strictly  a  reservation.  It  appears  to 
be  rather  a  mere  personal  obligation,  imposed  upon  and  assumed  by 
the  grantee,  and  binding  upon  him  and  his  legal  representatives  as  an 
implied  contract  entered  into  with  the  grantor;  not  amounting  to  a 
covenant,  or  a  charge  upon  the  land;  but  an  obligation,  which,  if 
enforceable  at  all  against  purchasers,  is  to  be  enforced  against  them 
by  a  court  of  equity  alone,  and  having  no  more  force  and  effect  than 
in  case  of  an  express  agreement  not  under  seal  between  two  owners 
of  adjoining  land.     *     *     * 

Being  .of  the  opinion,  for  these  reasons,  that  the  judgment  of  the 
Superior  Court  must  be  affirmed,  we  do  not  enter  upon  the  consider- 
ation of  the  grave  question,  whether  even  upon  the  assumption  that  an 
easement  of  this  peculiar  nature  was  created  by  the  deed,  the  plaintiff 
has  a  remedy,  either  at  law  or  in  equity,  against  the  defendant,  who 
conveyed  away  her  interest  in  the  premises  about  two  years  before 
the  action  was  brought ;  there  being  no  averment  in  the  declaration 
that  the  plaintiff  suffered  any  actual  damage  during  the  time  of  the 
defendant's  ownership. 

Judgment  affirmed. 


494  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Paxt  2 


CHAPTER  V 

EQUITABLE  ENFORCEMENT  OF  AGREEMENTS  RUN- 
NING WITH  THE  LAND 


SECTION  1.— GENERAL  PRINCIPLES 


TULK  V.  MOXHAY. 
(Court  of  Chancery,  1S48.    2  Phil.  774.) 

In  the  year  1808  the  plaintiff,  being  then  the  owner  in  fee  of  the  va- 
cant piece  of  ground  in  Leicester  Square,  as  well  as  of  several  of  the 
houses  forming  the  square,  sold  the  piece  of  ground  by  the  descrip- 
tion of  "Leicester  Square  Garden  or  Pleasure  Ground,  with  the  eques- 
trian statue  then  standing  in  the  centre  thereof,  and  the  iron  railing 
and  stone  work  round  the  same,"  to  one  Elms  in  fee:  and  the  deed 
of  conveyance  contained  a  covenant  by  Elms,  for  himself,  his  heirs, 
and  assigns,  with  the  plaintiff,  his  heirs,  executors,  and  administrators : 

"That  Elms,  his  heirs,  and  assigns,  should,  and  would  from  time 
to  time,  and  at  all  times  thereafter  at  his  and  their  own  costs  and 
charges,  keep  and  maintain  the  said  piece  of  ground  and  Square  Gar- 
den, and  the  iron  railing  round  the  same  in  its  then  form,  and  in  suffi- 
cient and  proper  repair  as  a  Square  Garden  and  Pleasure  Ground,  in 
an  open  state,  uncovered  with  any  buildings,  in  neat  and  ornamental 
order;  and  that  it  should  be  lawful  for  the  inhabitants  of  Leicester 
Square,  tenants  of  the  plaintiff,  on  payment  of  a  reasonable  rent  for 
the  same,  to  have  keys  at  their  own  expense  and  the  privilege  of  ad- 
mission therewith  at  any  time  or  times  into  the  said  Square  Garden 
and  Pleasure  Ground." 

The  piece  of  land  so  conveyed  passed  by  divers  mesne  conveyances 
into  the  hands  of  the  defendant,  whose  purchase  deed  contained  no 
similar  covenant  with  the  vendor:  but  he  admitted  that  he  had  pur- 
chased with  notice  of  the  covenant  in  the  deed  of  1808. 

The  defendant  having  manifested  an  intention  to  alter  the  charac- 
ter of  the  Square  Garden,  and  asserted  a  right,  if  he  thought  fit,  to 
build  upon  it,  the  plaintiff,  who  still  remained  owner  of  several  houses 
in  the  Square,  filed  this  bill  for  an  injunction;  and  an  injunction  was 
granted  by  the  Master  of  the  Rolls,  to  restrain  the  defendant  from 
converting  or  using  the  piece  of  ground  and  Square  Garden,  and  the 
iron  railing  round  the  same,  to  or  for  any  other  purpose  than  as  a 
Square  Garden  and  Pleasure  Ground  in  an  open  state,  and  uncovered 
with  buildings. 

On  a  motion,  now  made,  to  discharge  |hat  order. 


Ch.  5)  EQUITABLE    ENFORCEMENT   OF   AGREEMENTS  495 

The  Lord  Ciiancdllor.*  *  *  *  That  this  court  has  jurisdic- 
tion to  enforce  a  contract  between  the  owner  of  land  and  his  neighbor 
purchasing  a  part  of  it,  that  the  latter  shall  either  use  or  abstain  from 
using  the  land  purchased  in  a  particular  way,  is  what  I  never  knew 
disputed.  Here  there  is  no  question  about  the  contract;  the  owner 
of  certain  houses  in  the  Square  sells  the  land  adjoining,  with  a  cove- 
nant from  the  purchaser  not  to  use  it  for  any  other  purpose  than  as 
a  Square  Garden.  And  it  is  now  contended,  not  that  the  vendee  could 
\iolate  that  contract,  but  that  he  might  sell  the  piece  of  land,  and  that 
the  purchaser  from  Him  may  violate  it  without  this  court  having  any 
power  to  interfere.'  If  that  were  so,  it  would  be  impossible  for  an 
owner  of  land  to  sell  part  of  it  without  incurring  the  risk  of  rendering 
what  he  retains  worthless.  It  is  said  that,  the  covenant  being  one 
which  does  not  run  with  the  land,  this  court  cannot  enforce  it ;  but 
the  question  is,  not  whether  the  covenant  runs  with  the  land,  but- 
v.heLher  a  party  shall  be  permitted  to  use  the  land  in  a  manner  incon- 
sistent with  the  contract  entered  into  by  his  vendor,  and  with  notice 
of  which  he  purchased.-  Of  course,  the  price  would  be  afifected  by  the 
covenant,  and  nothing  could  be  more  inequitable  than  that  the  original 
purchaser  should  be  able  to  sell  the  property  the  next  day  for  a  great- 
er price,  in  consideration  of  the  assignee  being  allowed  to  escape  from 
the  liability  which  he  had  hmiself  undertaken. 

That  the  question  does  not  depend  upon  whether  the  covenant  runs 
with  the  land,  is  evident  from  this,  that  if  there  was  a  mere  agreement 
and  no  covenant,  this  court  would  enforce  it  against  a  party  purchas- 
ing with  notice  of  it;  for  if  an  equity  is  attached  to  the  property  by 
the  owner,  no  one  purchasing  with  notice  of  that  equity  can  stand  in  a 
different  situation  from  the  party  from  whom  he  purchased.  There 
are  not  only  cases  before  the  Vice-Chancellor  of  England,  in  which  he 
considered  that  doctrine  as  not  in  dispute ;  but  looking  at  the  ground 
on  which  Lord  Eldon  disposed  of  the  case  of  the  Duke  of  Bedford  v. 
The  Trustees  of  the  British  Museum,  2  My.  &  K.  552,  it  is  impossible 
to  suppose  that  he  entertained  any  doubt  of  it. 

1  Part  of  the  opinion  is  omitted. 

2Adjaccnt  owners  made  an  unsealed  agreement  bj'^  which  a  window  In  the 
house  of  the  one  was  to  have  a  certain  amount  of  light  from  the  land  or 
the  othor.  The  second  owner  sold  to  a  third  person,  who  saw  the  window, 
but  had  no  actual  notice  of  the  agreement.  Held,  reversing  the  decision  of 
Hall,  V.  C,  he  is  not  bound  by  the  agreement.  Allen  v.  Seekham,  L.  R.  11< 
Ch.  D.  790   (187S). 

See,  also.  Bradley  v.  Walker,  1.3S  N.  Y.  291,  299,  .33  N.  E.  1079  (1S93). 

"It  cannot,  I  think,  be  denied  that  generally  speaking  a  purchaser  or 
mortgagee  is  bound  to  inquire  into  the  title  of  his  vendor  or  mortgagor,  and 
will  be  affected  with  notice  of  what  appears  upon  the  title  if  he  does  not 
so  inquire ;  nor  can  it,  I  think,  be  disputed  that  this  rule  applies  to  a  pur- 
chaser or  mortgagee  of  leasehold  estates,  as  much  as  it  applies  to  a  pur- 
chaser or  mortgagee  of  freehold  estates,  or  that  it  applies  equally  to  a  ten- 
ant for  a  term  of  years;  and  I  cannot  see  my  way  to  hold  that  a  rule  which 
applies  in  all  these  cases  ought  not  to  be  held  to  apply  in  the  case  of  a  ten- 
ant from  year  to  year."  Wilson  v.  Hart,  L.  K.  1  Ch.  App.  463,  4(J7  (18(3(5). 
Compare  Carter  v.  Williams,  L.  R.  9  Eq.  Cas.  67S  (1870). 


496  RIGHTS   IN   THE   LAND   OF  ANOTHER  (Part  2 

With  respect  to  the  observations  of  Lord  Brougham  in  Keppell  v. 
Bailey  [2  M.  &  K.  547]  he  never  could  have  meant  to  lay  down,  that 
this  court  would  not  enforce  an  equity  attached  to  land  by  the  owner, 
unless  under  such  circumstances  as  would  maintain  an  action  at  law. 
If  that  be  the  result  of  his  observations,  I  can  only  say  that  I  cannot 
coincide  with  it. 

I  think  the  cases  cited  before  the  Vice-Chancellor  and  this  deci- 
sion of  the  Master  of  the  Rolls  perfectly  right,  and,  therefore,  that 
this  injunction  must  be  refused  with  costs.' 


HAYWOOD  v.  BRUNSWICK  PERMANENT  BENEFIT  BUILD- 
ING SOCIETY. 

(Court  of  Appeal,  1881.    L.  R.  8  Q.  B.  D.  403.) 

This  was  an  action  against  a  building  society,  the  mortgagees  .of  cer- 
tain land,  upon  a  covenant  to  build  and  keep  in  repair  houses  erected 
upon  the  land.    The  facts  were  these : 

By  an  indenture  dated  tlie  17th  of  May,  1866,  made  between  Charles 
Jackson  and  Edward  Jackson,  Charles  Jackson  granted  a  plot  of  land 
to  Edward  to  the  use  that  Edward  should  pay  Charles  an  annual  chief 
rent  of  £11.,  and  Edward  for  himself,  his  heirs,  executors,  administra- 
tors, and  assigns,  covenanted  with  Charles,  his  executors  and  assigns, 
that  he  Edward,  his  heira  and  assigns,  would  pay  Charles,  his  heirs 
and  assigns,  this  rent  half-yearly,  and  would  erect  and  keep  in  good 
repair  and,  when  necessary,  rebuild, ,  messuages  on  the  land  of  the 
value  of  double  the  rent.  On  the  2nd  of  March,  1867,  Charles  Jack- 
son conveyed  to  Haywood  to  the  use  of  Haywood,  his  heirs  and  as- 
signs, the  said  chief  rent  and  all  powers  and  remedies  in  respect  there- 
of, together  with  the  benefit  of  the  said  covenant.  Edward  Jackson 
assigned  his  interest  to  MacAndrew.  MacAndrew  by  a  deed  of  the  8th 
of"  September,  1871,  mortgaged  the  premises  in  question  to  certain 
persons  described  as  the  trustees  of  the  Brunswick  Building  Society  in 

8  "It  is  strenuously  urged,  in  bohalf  of  the  defendants  and  respondents, 
that  there  was  no  privity  of  estate  between  the  mutual  covenantors  and 
covenantees,  in  respect  of  the  premises  owned  by  them  respectively,  and 
which  were  the  subjects  of  the  covenants  and  agreements,  and  that  the 
covenants  did  not  therefore  run  with  the  lands,  binding  the  grantees,  and 
subjecting  them  to  a  personal  liability  thereon.  This  may  be  conceded  for 
all  the  purposes  of  this  action.  It  is  of  no  importance  whether  an  action 
at  law  could  be  maintained  against  the  grantees  of  Beers,  as  upon  a  covenant 
running  with  the  land  and  binding  them.  Whether  it  was  a  covenant  run- 
ning with  the  land  or  a  collateral  covenant,  or  a  covenant  in  gross,  or 
whether  an  action  at  law  could  be  sustained  upon  it,  is  not  material  as 
afTccHng  the  jurisdiction  of  a  court  of  equity,  or  the  right  of  the  owners 
of  the  dominant  tcnemont  to  relief  upon  a  disturbance  of  the  easements." 
Allen,  J.,  in  Trustees  of  Columbia  College  v.  Lynch,  70  N.  Y.  440,  448,  2(> 
Am.  Uep.  015   (1ST7J. 


Ch.  5)  EQUITABLE    ENFORCEMENT    OF   AGREEMENTS  497 

fee  subject  to  the  rent-charge  and  covenants  above-mentioned.  The 
building  society  was  afterwards  incorporated  under  the  Act  of  1874, 
and  under  the  mortgage  deed  took  possession  of  the  land  and  the 
buildings  on  it.  It  was  conceded  on  the  one  hand  that  buildings  of  the 
stipulated  value  had  been  erected  upon  the  land,  and  on  the  other  that 
they  had  not  been  kept  in  repair,  and  the  question  was  whether,  under 
the  circumstances  stated,  the  building  society  was  liable  upon  the  cov- 
enant to  keep  them  in  repair.  No  question  arose  as  to  their  liability 
to  pay  the  chief  rent,  as  the  arrears  were  paid  into  court  in  the  ac- 
tion. 

The  case  was  tried  before  Stephen,  J.,  without  a  jury,  at  the  Man- 
chester Winter  Assizes,  1881,  who  reserved  it  for  furtlier  consideration, 
and  after  stating  the  facts  as  above,  gave  judgment  as  follows.    *    *    * 

The  result  is  that  there  must  be  judgment  for  the  plaintiff,  with  costs. 
There  will  be  no  damages,  the  parties  having  agreed  that  if  it  is  for- 
mally decided  that  the  defendants  are  to  put  the  buildings  in  repair, 
they  must  be  repaired  to  the  satisfaction  of  a  gentleman  agreed  upon. 

The  defendants  appealed. 

Brf/i't,  L.  J.*  This  appeal  must  be  allowed.  I  am  clearly  of  opinion, 
both  on  principle  and  on  the  authority  of  Milnes  v.  Branch,  5  M.  &  S. 
411,  that  this  action  could  not  be  maintained  at  common  law.  Milnes  v. 
Branch.  5  M.  &  S.  411,  must  be  understood,  as  it  always  has  been  un- 
derstood, and  as  Lord  St.  Leonards  (Sug.  V.  &  P.  [14th  Ed.]  p.  590) 
understood  it,  and  it  will  be  seen,  on  a  reference  to  his  book,  that  he 
considers  the  effect  of  it  to  be  that  a  covenant  to  build  does  not  run 
with  the  rent  in  the  hands  of  an  assignee. 

This  being  so,  the  question  is  reduced  to  an  equitable  one.  Now  the 
equitable  doctrine  was  brought  to  a  focus  in  Tulk  v.  Moxhay,  2  Ph. 
774,  which  is  the  leading  case  on  this  subject.  It  seems  to  me  that  that 
case  decided  that  an  assigiiee  taking  land  subject  to  a  certain  class  of 
covenants  is  bound  by  such  covenants  if  he  has  notice  of  them,  and 
that  the  class  of  covenants  comprehended  within  the  rule  is  that  cov- 
enants restricting  the  mode  of  using  the  land  only  will  be  enforced. 
It  may  be  also,  but  it  is  not  necessary  to  decide  here,  that  all  covenants 
also  which  impose  such  a  burden  on  the  land  as  can  be  enforced  against 
the  land  would  be  enforced.  Be  that  as  it  may,  a  covenant  to  repair  is 
not  restrictive  and  could  not  be  enforced  against  the  land ;  therefore 
such  a  covenant  is  within  neither  rule.  It  is  admitted  that  there  has 
been  no  case  in  which  any  Court  has  gone  farther  than  this,  and  yet 
if  the  Court  would  have  been  prepared  to  go  farther,  such  a  case  would 
have  arisen.  The  strongest  argument  to  the  contrary  is,  that  the  rea- 
son for  no  Court  having  gone  farther  is  that  a  mandatory  injunction 
was  not  in  former  times  grantable,  whereas  it  is  now ;  but  I  cannot 
help  thinking,  in  spite  of  this,  that  if  we  enlarged  the  rule  as  it  is 

*  Part  of  the  opinious  of  Brett  aud  Cotton,  L.  JJ.,  are  omitted. 
Big. Rights — 32 


498  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

contended,  we  should  be  making  a  new  equity,  which  we  cannot 
do.     *     *     * 

Cotton,  L.  J.  I  am  of  the  same  opinion  on  both  points.  I  think 
that  a  mere  covenant  tliat  land  shall  be  improved  does  not  run  with  the 
land  within  the  rule  in  Spencer's  Case,  1  Sm.  L.  C.  8th  Ed.  at  page 
89,  so  as  to  give  the  plaintiff  a  right  to  sue  at  law.  I  also  think  that  the 
plaintiff  has  no  remedy  in  equit}^  Let  us  consider  the  examples  in 
which  a  Court  of  Equity  has  enforced  covenants  affecting  land.  We 
tind  that  they  have  been  invariably  enforced  if  they  have  been  re- 
strictive, and  that  with  the  exception  of  the  covenants  in  Cooke  v.  Chil- 
cott,  3  Ch.  D.  694,  only  restrictive  covenants  have  been  enforced.  In 
Tulk  V.  Moxhay,  2  Ph.  774,  the  earliest  of  the  cases.  Lord  Cottenham 
says,  "That  this  Court  has  jurisdiction  to  enforce  a  contract  between  the 
owner  of  land  and  his  neighbour  purchasing  a  part  of  it,  that  the  latter 
shall  either  use  or  abstain  from  using  it  in  a  particular  way,  is  what  I 
never  knew  disputed."  In  that  case  the  covenant  was  to  use  in  a  par- 
ticular manner,  from  vvhich  was  implied  a  covenant  not  to  use  in  any 
other  manner,  and  the  plaintiff  obtained  an  injunction  restraining  the 
defendant  from  using  in  any  other  manner,  although  the  covenant  was 
in  terms  affirmative.  At  page  778,  Lord  Cottenham  says,  "If  an  equity 
is  attached  to  property  by  the  owner,  no  one  purchasing  with  notice 
of  that  equity  can  stand  in  a  different  situation  from  the  party  from 
whom  he  purchased."  This  lays  down  the  real  principle  that  an  equity 
attaches  to  the  owner  of  the  land.  It  is  possible  that  the  doctrine 
might  be  extended  to  cases  where  there  is  an  equitable  charge  which 
might  be  enforced  against  the  land,  but  it  is  not  necessary  to  decide 
that  now ;  it  is  enough  to  say  that  with  that  sole  exception  the  doc- 
trine could  not  be  farther  extended.  The  covenant  to  repair  can  only 
be  enforced  by  making  the  owner  put  his  hand  into  his  pocket,  and 
there  is  nothing  which  would  justify  us  in  going  that  length.     *     *     * 

[LiNDLEY,  L.  J.,  delivered  a  concurring  opinion.] 

Appeal  allowed,'^ 


HALL  v.  EWIN. 

(Court  of  Appeal,  1SS7.     L.  R.  37  Ch.  D.  74.) 

The  plaintiff,  W.  H.  Hall,  was  the  owrier  of  a  house  in  Edgware 
Road,  in  the  parish  of  Paddington.  By  an  indenture  dated  the  3d  of 
November,  1849,  the  plaintiff  granted  a  lease  of  the  house  to  G.  Tarl- 
ington  for  eighty  years.  The  lease  contained  a  covenant  by  the  lessee 
for  himself,  his  heirs,  executors,  administrators,  and  assigns,  in  the 
following  terms :  "That  he,  his  executors,  administrators,  and  assigns, 
shall  not  at  any  time  during  the  said  term  use,  exercise,  or  carry  on  in 

sAcc:     Austerberry    v.    Oldham.    L.    R.    29    Ch.    D.    750    (1SS5)      Contra- 
Holmes  v.  Buckley,  Free,  in  Ch.  39  (1692). 
See  Foitescue  v.  Lostwithiel  Ry.  Co.,  [Ib'Ji]  3  Ch.  G21. 


Ch.  5)  EQUITABLE    ENFORCEMENT   OF   AGREEMENTS  499 

or  upon  the  said  hereby  demised  premises,  or  permit  or  suffer  any 
part  thereof  to  be  occupied  by  any  person  or  persons  who  shall  use, 
occupy,  or  carry  on  therein  any  noisome  or  oftensive  trade,  business, 
or  employment  whatsoever  without  the  like  consent  in  writing  of  the 
said  W.  H.  Hall,  his  heirs  or  assigns,  first  obtained." 

By  an  indenture  dated  the  11th  of  January,  1851,  G.  Tarlington,  de- 
mised tlie  premises  to  R.  S.  Ruddach  for  the  residue  of  the  term  of 
eighty  years,  except  the  last  three  days  thereof,  by  way  of  mortgage 
for  securing  the  repayment  of  a  principal  sum  and  interest. 

By  an  indenture  dated  the  19th  of  September,  1865,  the  executors 
of  R.  S.  Ruddach,  under  the  power  of  sale  contained  in  the  mortgage 
deed,  assigned  the  premises  for  the  residue  of  the  term  of  eighty 
years,  except  the  last  three  days  thereof,  to  the  defendant  John  Ewin. 

By  an  indenture  dated  the  29th  of  October,  1885,  the  defendant  John 
Ewin  demised  the  premises  to  the  defendant  George  McNeff  for 
twenty-one  years.  This  lease  contained  tlie  following  covenant  by  Mc- 
Xefif :  "And  also  shall  not  at  any  time  during  the  said  term  use,  exer- 
cise, or  carry  on  in  or  upon  the  said  demised  premises  any  noisome 
or  offensive  trade,  business,  or  employment  whatsoever  without  the 
like  consent  in  writing  of  the  said  John  Ewin,  his  executors,  admin- 
istrators, or  assigns,  first  obtained." 

In  tlie  month  of  February,  1886,  the  defendant  McXeff  purchased 
some  lions,  and  opened  an  exhibition  of  wild  beasts  on  the  premises. 
He  exhibited  pictures  outside  the  house,  and  employed  black  men  to 
parade  in  front  of  it  with  a  gong  and  trumpet,  so  that  the  neighbours 
complained  of  the  nuisance. 

The  present  action  was  brought  by  W.  H.  Hall  and  C.  Breitbart, 
who  was  a  carver  and  gilder,  keeping  a  shop  two  doors  from  the  prem- 
ises in  question,  asking  for  an  injunction  to  restrain  Ewin  and  Mc- 
Xeff from  using  tlie  premises  as  an  exhibition  of  wild  animals,  or 
otherwise  so  as  to  cause  a  nuisance  to  the  plaintiffs,  and  also  from 
carrying  on  upon  the  premises,  or  permitting  or  suffering  any  part 
thereof  to  be  occupied  by  any  person  carrying  on,  any  noisome  or  of- 
fensive trade  or  business  without  the  consent  in  writing  of  the  plain- 
tiff W.  H.  Hall. 

In  his  defence  the  defendant  Ewin  pleaded  that  if  the  allegations  in 
the  statement  of  claim  were  correct  they  created  no  cause  of  action 
against  lym,  that  none  of  the  acts  complained  of  had  been  committed 
by  him,  and  that  he  had  given  no  consent  in  writing  to  the  acts  com- 
plained of ;  but,  on  the  contrary,  he  had  done  all  in  his  power,  save  by 
bringing  an  action,  to  induce  McX^'eff  to  desist  from  any  acts  which 
might  cause  annoyance  to  the  neighbourhood,  and  that  he  was  not 
liable  for  the  alleged  acts  of  McXeif. 

The  existence  of  the  nuisance  was  sufficiently  proved  by  the  evi- 
dence. There  was  no  evidence  of  Ewin  having  in  any  way  encouraged 
or  consented  to  the  exhibition  complained  of.     *     *     * 

The  case  was  heard  on  the  3d  of  May,   1887,  before  Air.  Justice 


500  EIGHTS  IN  THE   LAND  OF  ANOTHER  (Part  2 

Kekewich.  His  Lordship  was  of  opinion  that  although  Ewin  was  not 
an  assignee  of  the  lease,  he  was  equitably  bound  by  the  covenant,  and 
that  as  he  had  the  power  to  enforce  his  own  covenants  against  AIc- 
Neff  and  to  stop  the  nuisance,  he  had  broken  the  covenant  against  suf- 
fering the  premises  to  used  for  the  purpose  of  carrying  on  a  noisome 
occupation.  He  therefore  granted  the  injunction  against  both  of  the 
defendants,  with  costs.  From  this  judgment  the  defendant  Ewin  ap- 
pealed. 

Cotton,  L.  J.®  This  is  an  appeal  by  the  Defendant  Ewin  against  a 
judgment  of  Mr.  Justice  Kekewich,  granting  an  injunction  restraining 
him  from  the  breach  of  a  certain  covenant  in  a  lease.  Is  tliis  right? 
Ewin  is  in  this  position.  The  plaintiff  Hall  granted  a  lease  contain- 
ing tlie  covenant  in  question,  and  the  lessee  made  a  mortgage  of  the 
lease  by  underlease,  and  the  mortgagee  sold  his  interest  under  his 
power  of  sale  to  Ewin ;  therefore  Ewin  was  merely  an  underlessee 
and  was  not  bound  at  law  by  the  covenants  in  the  original  lease.  He 
would  have  been  bound  if  he  had  taken  an  assignment  of  the  estate 
of  tlie  lessee  under  the  lease,  but  he  took  no  such  assignment.  It  is 
useless  to  consider  whether  if  Ewin  had  been  bound  at  law  the  plain- 
tiff could  have  maintained  an  action  against  him  and  got  damages.  If 
the  plaintiff  is  entitled  to  relief  in  this  case  it  must  be  not  on  the  ground 
of  breach  of  covenant,  but  on  the  ground  that  he  is  equitably  bound,  on 
the  principle  laid  down  in  Tulk  v.  Moxhay,  2  Ph.  774,  to  use  the  house 
in  conformity  with  the  covenants  in  the  lease.  I  am  of  opinion  that 
it  would  be  an  extension  of  the  principle  of  Tulk  v.  Moxhay  to  hold 
him  liable  to  an  injunction  in  such  a  case  as  this.  The  words  of  the 
covenant  in  the  original  lease  are  these.  [His  Lordship  read  the  cove- 
nant,] Then  what  are  the  facts?  The  defendant  Ewin,  who  was  him- 
self an  underlessee,  granted  an  underlease  to  McNeff,  in  which  there 
was  a  covenant  tliat  he  could  not  exercise  any  noisome  or  offensive 
trade  or  business  without  the  consent  in  writing  of  Ewin.  If  the  plain- 
tiffs had  shewn  that  Ewin  had  granted  this  underlease  for  the  purpose 
of  its  being  used  for  an  oft'ensive  trade  or  had  granted  a  written  li- 
cense to  McNeff  so  to  use  it,  he  would  have  acted  in  a  way  inconsist- 
ent with  the  covenants  in  the  original  lease,  and  I  should  have  had  no 
hesitation  in  granting  an  injunction  against  him;  but  he  has  done  noth- 
ing of  the  kind,  and  the  case  made  against  him  is  that  by  standing  by 
allowing  the  house  to  be  used  for  the  exhibition  of  wild  beasts,  he 
has  acted  in  violation  of  the  covenant.  I  give  no  opinion  whetlier  the 
plaintiff'  would  have  had  a  right  of  action  against  him  if  he  had  been 
bound  in  law  by  the  covenant.  There  is  no  doubt  tliat  under  the  prin- 
ciple of  Tulk  v.  Moxhay,  2  Ph.  774,  if  a  man  had  actually  done  any- 
thing in  contravention  of  the  covenants  of  which  he  had  notice,  the 
Court  would  grant  an  injunction.  As  I  understand  Tulk  v.  Moxhay, 
the  principle  there  laid  down  was  that  if  a  man  bought  an  underlease, 

«  Statement  abridged  and  part  of  opinion  omitted. 


Ch.  5)  EQUITABLE    ENFORCEMENT   OF   AGREEMENTS  501 

although  he  was  not  bound  in  law  by  the  restrictive  covenants  of  the 
original  lease,  yet  if  he  purchased  with  notice  of  those  covenants  the 
Court  of  Chancery  could  not  allow  him  to  use  the  land  in  contraven- 
tion of  the  covenants.  That  is  a  sound  principle.  If  a  man  buys  land 
subject  to  a  restrictive  covenant,  he  regulates  the  price  accordingly, 
and  it  would  be  contrary  to  equity  to  allow  him  to  use  the  land  in  con- 
travention of  the  restriction.  But  here  the  plaintiff  does  not  seek  to 
restrain  Ewin  from  using  the  house  in  a  particular  way,  or  from 
doing  something  which  will  enable  the  tenant  so  to  use  it,  but  to  compel 
him  to  bring  an  action  against  his  tenant  who  is  in  possession  of  the 
house.  The  principle  of  Tulk  v.  Moxhay,  has  never  been  carried  so 
far  except  in  a  case  before  Vice  Chancellor  Malins.  Cooke  v.  Chilcott, 
3  Ch.  D.  694.  The  question  came  practically  before  the  Court  of  Ap- 
peal in  Haywood  v.  Brunswick  Permanent  Benefit  Building  Society, 
8  Q.  B.  D.  403,  and  the  Court  there  laid  down  that  the  principle  in 
Tulk  V.  Moxhay  was  not  to  be  applied  so  as  to  compel  a  man  to  do 
that  which  will  involve  him  in  expense.  The  covenant  in  Haywood 
v.  Brunswick  Permanent  Benefit  Building  Society  was  to  repair  build- 
ings on  the  land,  and  was  therefore  as  much  with  reference  to  the 
land  as  the  covenant  in  this  case,  but  the  Court  would  not  compel  the 
defendant,  who  was  the  assignee  of  the  original  grantee,  to  repair  the 
buildings.  There  is  no  evidence  in  this  case  that  the  defendant  Ewin 
has  given  -any  license  to  his  tenant  to  do  the  act  complained  of.  I 
think  it  would  be  wrong  to  make  an  order  that  would  have  the  effect 
of  compelling  him  to  bring  an  action,  or  of  making  him  liable  to 
damages  if  he  did  not  bring  an  action.  It  is  said  that  he  did  nothing 
to  prevent  the  use  of  the  house  in  the  way  complained  of.  But  be- 
fore the  action  was  brought  it  appears  from  the  evidence  that  the 
clerk  of  the  plaintiff's  solicitor  called  at  the  house  of  the  defendant 
Ewin,  and  that  Ewin  informed  him  that  he  would  see  McNeff  about 
the  matter,  and  then  the  plaintiff  himself  puts  In  evidence  a  letter  from 
McNeff'  saying  that  oui  of  respect  to  Ewin's  wishes  he  had  stopped  the 
exhibition.  It  is  true  that  the  statement  of  McNeff,  that  the  ex- 
hibition was  closed,  was  false,  but  the  plaintiff"  has  not  proved  that 
it  was  false  that  Ewin  had  requested  him  to  stop  it.  So  that  on  the 
evidence  it  stands  that  there  is  no  proof  that  the  defendant  gave  per- 
mission to  his  tenant  to  open  the  exhibition,  but  it  does  appear  that 
he  spoke  to  him  and  requested  him  to  discontinue  it.  I  think  it  would 
be  wrong  to  grant  an  injunction  against  Ewin  under  these  circum- 
stances.    The    injunction    against   him   must   therefore   be   discharg- 

[LiNDLEY  and  Lopes,  L.  JJ.,  delivered  concurring  opinions.]' 

7A.  leased  to  B.  with  a  covenant,  which  was  apparently  also  a  condition, 
that.  B.  "would  not  make  or  suffer  any  *  *  ♦  offensive  use  of  the  prera- 
ises."  B.  subleased  to  C,  who  made  an  improper  use  of  them.  A.  entered 
and  forfeited  the  lease.  B,  hrought  ejectment  to  regain  possession  of  the 
premises.     Held,   he   cannot   recover   possession.    The   court    (Knowlton,   J.) 


502  EIGHTS   IN  THE  LAND   OF   ANOTHER     "  (Part  2 

RANDALL  et  al.  v.  LATHAM. 
(Supreme  Court  of  Connecticut,  1869.    36  Conn.  48.) 

Bill  in  equity,  to  compel  the  specific  performance  of  an  agreement 
of  the  respondent  with  the  petitioners'  grantor  with  regard  to  water 
from  the  respondent's  raceway  for  the  petitioners'  mill ;  brought  to 
the  Superior  Court  in  Windham  county. 

The  respondent  was  the  owner  of  a  water  privilege  on  a  stream 
known  as  Round  Brook,  with  a  grist  mill  and  raceway  leading  to  the 
same,  and,  on  the  20th  of  April,  1855,  took  from  one  Hiram  Thomas 
a  conveyance  of  a  tract  of  thirty  acres  adjoining  his  mill,  the  grantor 
remaining  the  owner  of  a  factory  a  little  below  on  the  same  streafii. 
The  deed  from  Thomas  to  the  respondent  contained  the  following 
provision :  "Reserving  and  excepting  the  following  privileges,  to  wit : 
the  privilege  of  the  right  of  way,  in  common  with  the  said  grantee, 
in  the  lane  from  the  said  bridge  to  the  said  turnpike,  nearly  eleven 
feet  on  the  westerly  side  of  said  lane,  making  the  whole  width  of  said 
lane  twenty-two  feet ;  and  also,  the  said  grantor  is  to  have  the  priv- 
ilege of  drawing  the  water  from  the  ditch  of  said  Latham's  grist 
mill,  at  all  times  when  the  said  Latham,  or  his  successor,  is  not  using 
sufficient  water  for  the  accommodation  of  the  factory  below  said 
Latham's  mill,  and  the  said  Latham  and  his  successor  are-.to  keep  a 
spout  ten  inches  square  in  the  inside,  at  the  bottom  of  said  ditch,  to 
which  the  said  grantor  shall  at  all  times  have  access  for  the  purpose 
of  drawing  water  as  aforesaid." 

On  the  9th  day  of  February,  1866,  Thomas  conveyed  his  factory, 
and  the  land  connected  with  it,  to  the  petitioner  Randall;  the  deed 
expressly  conveying  "all  rights  and  privileges  specified  in  the  deed  of 
the  grantor  to  said  Joseph  B.  Latham,  dated  April  20th,  1855."  Ran- 
dall afterwards  conveyed  one  half  the  property  embraced  in  his  deed 
to  the  other  petitioner,  Harris. 

The  present  petition  was  dated  August  10,  1868.  Down  to  this 
time  the  respondent  had  never  put  in  the  spout  provided  for  in  the  deed 
of  Thomas  to  him,  and  on  the  application  of  the  petitioners,  after 
they  became  the  owners  of  the  Thomas  factory,  refused  to  put  it  in 

paid:  "We  are  of  opinion  that  tlie  asreement  not  'to  make  or  suffer'  an 
unlawful  use  of  the  premises  must  be  interpreted  as  a  stipulation  that  there 
shall  be  no  unlawful  use  by  the  original  lessee,  or  by  any  person  who  is 
occupying  under  him.  It  is  easy  for  the  lessee  to  control  the  use  of  the 
property,  and  to  protect  the  interests  of  the  lessor  and  of  himself  in  this 
particular.  With  this  interpretation,  effect  is  given  to  the  word  'suffer.' 
It  may  not  be  reasonable  to  hold  that  the  covenant  makes  the  lessee  liable 
for  an  unlawful  use  of  the  property  by  trespassers,  but  he  may  well  be 
held  to  'suffer'  unlawful  use  of  the  property  if  he  does  not  take  effectual 
measures  to  prevent  such  a  use  bv  those  who  occupy  by  his  authority."  Mill- 
er V.  Prescott,  163  Mass.  12,  13,  39  N.  E.  409,  410,  47  Am.  St.  Kep.  4^4 
(1895). 

.Soe  L'niversity  Club  v.  Deakin,  265  111.  257,  lOG  K.  E.  790,  L.  R.  A.  1915C, 
854  (1914),  post,  p.  G13. 


Ch.  5)  EQUITABLE    ENFORCEMENT   OF   AGREEMENTS  503 

and  denied  their  right  to  require  him  to  do  it.  The  petitioners  by 
their  suit  sought  to  compel  him  to  put  it  in,  and  claimed  the  right, 
under  their  deed  from  Thomas,  and  as  owners  of  the  factory  bought 
of  him,  to  draw  water  for  the  factory  from  the  respondent's  ditch, 
and  by  spout  put  in  and  maintained  by  him,  and  to  which  they  should 
have  constant  access  and  over  which  they  should  have  control.  The 
ditch  itself  was  never  owned  by  Thomas,  and  he  had  no  interest  in 
the  same  beyond  that  acquired  by  the  provision  of  his  deed  to  Latham, 
and  the  petitioners  had  no  interest  beyond  tliat  acquired  by  Thomas' 
deed  to  Randall. 

Upon  these  facts  the  case  was  reserved  for  the  advice  of  this  court. 

Park,  J.*  In  the  deed  from  Thomas  to  the  respondent  the  grantor 
reserved  from  the  premises  conveyed  the  right  to  draw  a  certain  quan- 
tity of  water  at  all  times  when  the  respondent  or  his  successor  should 
not  be  using  sufficient  water  for  the  accommodation  of  the  factory  be- 
low. The  grantor  owned  a  factory  below  the  mill  deeded  to  the  re- 
spondent, and  the  reservation  was  for  the  benefit  of  that  factory. 
There  is  a  provision  in  the  deed  in  connection  with  the  reservation  that 
the  respondent  and  his  successor  should  keep  a  spout  ten  inches  square 
at  the  bottom  of  the  ditch  leading  to  his  grist  mill  to  which  the  grantor 
should  at  all  times  have  access  for  the  purpose  of  exercising  the  right 
reserved  in  the  deed.  The  reservation  taken  in  connection  with  this 
provision  is  in  effect  a  reservation  of  the  right  to  draw  water  through 
a  spout  ten  inches  square.  The  right  reserved  is  not  otherwise  limit- 
ed or  defined.  That  right  was  never  sold  to  the  respondent,  but  Was 
subsequently  transferred  to  the  petitioners,  and  is  now  owned  by  them 
in  as  ample  a  manner  as  it  formerly  was  by  Thomas.  But  the  deed 
purports  to  require  the  respondent  to  put  in  the  spout  upon  land  not 
conveyed,  and  the  question  is,  whether  a  court  of  equity  can  compel 
him  to  do  it  under  the  circumstances  of  the  case.  That  the  respond- 
ent by  accepting  the  deed  containing  this  provision  thereby  agreed  to 
perform  this  duty  there  can  be  no  doubt.  The  case  of  Hinsdale  v. 
Humphrey,  15  Conn.  431,  is  in  point.  See,  also,  Townsend  v.  Ward, 
27  Conn.  610;Felch  v.  Taylor,  13  Pick.  (Mass.)  133;  Goodwin  v. 
Gilbert,  9  Mass.  510;  Burnett  v.  Lynch,  5  Barn.  &  Cress.  589.  This 
duty  was  a  part  of  the  consideration  of  his  deed.  The  respondent 
has  received  full  compensation,  and  it  is  difficult  to  see  why  he  is  not 
bound  to  perform  it.  It  will  be  seen  that  the  agreement  merely  pre- 
scribes the  mode  of  exercising  the  right  reserved.  Without  the  agree- 
ment Thomas  would  have  had  the  right  to  draw  the  water  at  some 
proper  place  on  the  land  conveyed,  but  in  order  that  the  convenience 
and  interest  of  both  parties  might  be  promoted  it  was  agreed  that  the 
orifice  should  be  placed  at  the  bottom  of  the  ditch  leading  to  the  re- 
spondent's grist  mill.  The  land  of  the  respondent  was  selected  for 
the  purpose  instead  of  the  land  conveyed. 

8  Tart  of  the  opinion  is  omitted. 


5(7i  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

The  reservation  of  the  right  to  the  water  would  have  carried  with 
it  an  easement  in  the  land  conveyed  for  the  purpose  of  drawing  the 
water,  on  the  principle  that  where  a  right  is  reserved  or  conveyed 
what  is  necessary  for  the  enjoyment  of  the  right,  and  without  which 
the  right  would  be  useless,  passes  or  is  retained  by  implication.    And 
again,  if  the  agreement  had  not  been  made  no  doubt  Thomas  would 
have  expressly  reserved  a  place  for  the  orifice.    The  agreement  of  the 
respondent  prevented  his  doing  this,  and  shall  the  respondent  be  per- 
mitted now  to  say  that  he  will  not  perform  his  agreement  when  he  has 
obtained  the  land  of  Thomas  by  means  of  it,  and  has  been  and  is  now  in 
the  enjoyment  of  the  land  as  his  own?    If  A.  agrees  to  convey  to  B. 
a  tract  of  land  in  consideration  that  B.  will  convey  to  A.  an  easement 
in  certain  other  lands,  and  A.  fulfills  his  part  of  the  agreement  and  B. 
goes  into  possession  of  the  land,  there  can  be  no  doubt  that  a  court  of 
equity  would  compel  B.  to  perform  his  part  of  the  agreement.     The 
respondent  therefore  can  derive  no  benefit   from  the  fact  that  the 
spout  was  agreed  to  be  placed  upon  land  that  Thomas  never  own- 
Again  it  is  claimed  that  the  agreement  was  a  mere  chose  in  action, 
and  did  not  pass  by  the  deed  from  Thomas  to  the  petitioners.     The 
deed  to  the  petitioners  refers  to  the  deed  from  Thomas  to  the  respond- 
ent, and  expressly  conveys  all  the  rights  and  privileges  specified  in  that 
deed  that  Thomas  had  the  right  to  convey.     The  right  to  the  water 
was  reserved  by  that  deed.     That  right  was  manifestly  conveyed  to 
the  petitioners.     By  that  deed  Thomas  acquired  an  easement  in  the 
respondent's  land  to  the  spout.     That  right  was  an  equitable  interest 
in  the  land  and  was  also  conveyed.     By  that  deed  the   respondent 
agreed  with  Thomas  to  put  in  the  spout.    The  act  of  putting  in  the 
spout  is  intimately  connected  with    the    easement,    so  much    so    that 
the    easement     could     not    be     enjoyed     without    the     performance 
of    this    duty.      Thomas    had    no    right    to    go    upon    the    respond- 
ent's   land    and    dig    up    the    soil    for    the    purpose    of    inserting 
the  spout,  neither  have  the  petitioners.     The  spout  was  agreed*  to  be 
placed  in  the  bottom  of  the  ditch  leading  to  the  respondent's  grist  mill. 
The  respondent  has  the  right  to  select  the  place  in  the  ditch  where  it 
shall  be  put,  and  to  attend  himself  to  the  putting  and  keeping  of  it 
there.    For  aught  that  we  can  discover  this  may  be  an  important  qual- 
ification of  the  right  given  to  Thomas  to  have  it  there,    A  conveyance 
therefore  of  the  equitable  easement  carried  with  it  the  privilege  of 
the  respondent  inseparably  connected  with   it.     Again,  the  promise 
of  the  respondent  to  put  in  the  spout  cannot  be  regarded  as  a  sepa- 
rate and  independent  promise,  even  if  it  is  a  duty  onerous  to  be  per- 
formed.   He  agreed  not  only  to  grant  an  easement  in  his  land,  but  to 
put  it  in  a  condition  to  be  enjoyed.    An  easement  in  that  condition  he 
promised  Thomas   in  consideration  for  the  land  he  conveyed.     An 
equitable  easement  in  that  promised  condition,  Thomas  conveyed  to 
the  petitioners.    Again,  if  the  promise  to  put  in  the  spout  was  a  chose 


Ch,  5)  EQUITABLE    ENFORCEMENT   OF   AGREEMENTS  505 

in  action,  it  was  transferred  to  the  petitioners  by  virtue  of  the  statute 
of  1864.  That  statute  applies  to  assignments  existing  when  the  act 
was  passed  as  well  as  to  those  that  should  thereafter  be  made.    *    *    * 

It  is  further  claimed  that  the  petitioners  cannot  sustain  their  bill 
because  the  finding  does  not  show  tliat  the  spout  is  needed  to  supply 
the  lower  mill  with  water.  We  think  the  respondent  is  right  in  this 
claim.  But  the  want  of  a  finding  upon  this  subject  may  have  been 
owing  to  oversight  on  the  part  of  counsel  in  neglecting  to  offer  evi- 
dence upon  a  point  not  in  dispute  between  the  parties,  and  we  think 
the  proper  course  therefore  is  to  advise  the  Superior  Court  that  if 
it  shall  be  found  on  a  further  hearing  of  the  case  that  the  spout  is 
needed  to  supply  the  petitioner's  mill  with  water,  the  prayer  of  the 
petition  should  be  granted.    And  we  so  advise. 

In  this  opinion  the  other  judges  concurred." 


COUNTRYMAN  v.  DECK. 
(Supreme   Court  of  New  York,   1SS3.     13   Abb.   N.  C.  110.) 

The  plaintiff  David  F.  Countryman  and  his  wife,  Emma  J.,  brought 
this  action  for  a  specific  performance  of  an  alleged  covenant  to  main- 
tain a  fence. 

It  appeared,  that  on  April  1,  1875,  Simpson,  owning  a  farm,  con- 
veyed a  lot  of  land  out  of  it  to  one  Woodward,  by  warranty  deed, 
which  contained,  after  the  description  of  the  land,  the  following 
words:  "Provided  always  that  the  party  of  the  second  part  shall 
fence  and  keep  fenced  the  premises  above  described." 

Woodward  entered  upon  the  lot,  and  fenced  it.  He  afterwards  con- 
veyed to  defendant. 

Simpson  died,  and  his  daughter,  Emma  J.  Countryman,  and  two 
sons,  succeeded  to  his  title  to  the  farm.  The  two  sons  afterwards  con- 
veyed their  interests  to  plaintiffs,  who  thus  become  the  owners  of  the 
entire  Simpson  farm.  Defendant  refused  to  keep  the  fence  about  his 
lot  in  repair,  and  this  action  was  brought  to  compel  him  to  do  it,  the 
fence  having  become  too  dilapidated  to  serve  the  ordinary  purpose  of 
a  fence. 


»A.,  who  owned  a  reservoir  and  several  mill  privileges  upon  the  stream 
below,  wbich  was  supplied  by  the  reservoir,  conveyed  one  of  the  sites  with 
water  privileges  to  B.  in  fee.  The  deed  contained  a  stipulation  that  B.  and 
his  assigu.s  should  pay  one-fifth  of  the  flowage  damage  caused  by  the  dam. 
In  a  bill  in  eiiuity  by  A.'s  successors  against  B.'s  assigns  to  recover  this 
one-fifth,  it  was  held  that  the  stipulation  created  a  right  in  A.  and  its  suc- 
cessors, that  could  be  enforced  against  the  laud  in  the  hands  of  B.'s  assigns, 
biit  not  as  a  personal  obligation.  Whitteuton  Mfg.  Co.  v.  Staples,  164  Mass. 
319,  41  N.  E.  441,  29  L.  K.  A.  500   (1895). 

See  Rochester  Lodge,  No.  21.  A.  F.  &  A.  M.,  v.  Graliam,  Go  Minn.  457,  an 
N.  W.  79,  37  L.  R.  A.  404   (1S9G). 


506  RIGHTS   IX  TOE   LAND   OP  ANOTHER  (Part  2 

RuMSEY,  J^°  [After  holding  that  the  proviso  was  equivalent  to  a 
covenant  by  the  grantee:]  The  only  remaining  question  is  as  to  the 
relief  to  be  given  to  the  plaintiffs.  The  duty  of  the  defendant  is  to 
keep  up  the  fence,  and  the  plaintiffs  -are  not  called  upon  to  do  it  (Beach 
V.  Grain,  2  N.  Y.  86,  49  Am.  Dec.  369).  The  covenant  is  a  continuous 
one,  and  plaintiffs  cannot  get  the  full  benefit  of  it  if  they  are  put  to  a 
suit  for  damages  each  time  the  defendant  fails  to  perform. 

There  is  no  such  uncertainty  about  it  as  to  forbid  a  decree  for  spe- 
cific performance.  In  Jones  v.  Seligman  (81  N.  Y.  190),  the  duty  im- 
posed upon  a  railroad  company  to  build  a  fence  was  decreed  to  be 
performed,  and  in  People  v.  R.  &  S.  L.  R.  R.  Co.  (76  N.  Y.  294),  per- 
formance of  the  like  duty  was  compelled  by  mandamus.  If  the  build- 
ing or  repair  of  a  fence  may  be  compelled  when  the  duty  is  imposed  by 
statute,  there  is  no  reason  why  it  may  not  be  decreed  when  it  is  as- 
sumed by  contract.  The  judgment  should  be  that,  defendant  keep  the 
fence  in  repair  where  it  adjoins  the  premises  of  the  plaintiffs,  with 
costs  to  plaintiffs. ^^ 


NORCROSS  et  al.  v.  JAMES  et  al. 
(Supreme  Judicial  Court  of  Massachusetts.  18S5.     140  Mass.  188,  2  X.  E.  94U.) 

Holmes,  J.  One  Kibbe  conveyed  to  one  Flynt  a  valuable  quarry 
of  six  acres,  bounded  by  other  land  of  the  grantor,  with  covenants 
as  follows :  "And  I  .do,  for  myself,  my  heirs,  executors,  and  adminis- 
trators, covenant  with  the  said  Flynt,  his  heirs  and  assigns,  that  I  am 
lawfully  seized  in  fee  of  the  afore-granted  premises ;  that  they  are  free 
of  all  incumbrances;  that  I  will  not  open  or  work,  or  allow  any  person 
or  persons  to  open  or  work,  any  quarry  or  quarries  on  my  farm  or 
premises  in  said  Long  Meadow."  By  mesne  conveyances  the  plaintiffs 
have  become  possessed  of  the  quarry  conveyed  to  Flynt,  and  the  de- 
fendants of  the  surrounding  land  referred  to  in  the  covenant.  The 
defendants  are  quarrying  stone  in  their  land  like  that  quarried  by  the 
plaintiffs :  and  the  plaintiffs  bring  their  bill  for  an  injunction.  The 
discussion  of  the  question  under  what  circumstances  a  land-owner  is 
entitled  to  rights  created  by  way  of  covenant  with  a  former  owner  of 
the  land  has  been  much  confused  since  the  time  of  Lord  Coke,  by  neg- 
lecting a  distinction,  which  he  stated  with  perfect  clearness,  between 
those  rights  which  run  only  with  the  estate  in  the  land  and  those  which 
are  said  to  be  attached  to  the  land  itself :     "So  note  a  diversity  be- 

10  Part  of  the  opinion  is  omitted. 

11  Certain  land  was  allotted  to  A.  in  fee  under  an  inclosure  act,  the  award 
providing  that  A.  and  his  assigns  should  maintain  a  division  ditch  and 
hedge  between  the  lot  awarded  and  an  adjoining  lot.  The  defendant  had 
acquired  A.'s  land,  and  had  broken  down  the  hedge  and  filled  the  ditcli. 
Held,  the  plaintiff,  as  owner  of  the  adjoining  lot.  is  entitled  to  an  injunction 
ordering  the  defendant  to  restore  the  ditch  and  hedge.  Bidvvell  v,  Ilolden, 
G3  L.  T.   (N.  a.)  104  (1800). 


Ch.  5)  EQUITABLE    ENFORCEMENT   OF   AGREEMENTS  507 

tvveen  a  use  or  warranty  and  the  like  things  annexed  to  the  estate  of 
the  land  in  privity,  and  commons,  advowsons,  and  other  hereditaments 
annexed  to  the  possession  of  the  land."  Chudleigh's  Case,  1  Coke, 
122b;   s.  c.  1  Poph.  70,  71. 

Rights  of  the  class  represented  by  the  ancient  warranty,  and  now 
by  the  usual  covenants  for  title,  are  pure  matters  of  contract,  and 
from  a  very  early  date  down  to  comparatively  modern  times,  lawyers 
have  been  perplexed  with  the  question,  how  an  assignee  could  sue  up- 
on a  contract  to  which  he  was  not  a  party.  West,  Symboleog.  I,^  §  35  ; 
Wing.  Max.  44,  pi.  20,  55,  pi.  10;  Co.  Litt.  117a;  Sir  Moyle  Finch's 
Case,  4  Inst.  85.  But  an  heir  could  sue  upon  a  warranty  of  his  an- 
cestor, because  for  that  purpose  he  was  eadem  persona  cum  anteces- 
sore.  See  Y.  B.  20  &  21  Edw.  I,  232,  (Rolle's  Ed.;)  Gates  v.  Frith, 
Hob.  130;  Bain  v.  Cooper,  1  Dowl.  Pr.  Cas.  (N.  S.)  11,  14.  And  the 
conception  was  gradually  extended  in  a  qualified  way  to  assigns,  where 
thcv  were  mentioned  in  the  deed.  Bract,  fol.  17b;  67a,  380b;  381; 
Fleta,  III,  c.  14,  §  6;  1  Britt.  (Nich.  Ed.)  255,  256;  Y.  B.  20  Edw.  I, 
232-234,  (Rolle's  Ed.;)  Fitz.  Abr.  "Covenant,"  pi.  28;  Vin.  Abr. 
"Voucher,"  N,  p.  59;  Y.  B.  14  Hen.  IV,  56;  20  Plen.  VI.  6,  34b;  Old 
Natura  Brevium,  "Covenant,"  67,  B,  C,  in  Rastell's  Law  Tracts  Ed. 
1534;  m.  k  Student,  I,  c.  8;  F.  N.  B.  145,  A;  Co.  Litt.  384b;  Com. 
Dig.  "Covenant,"  B  3 ;  Middlemore  at.  Goodale,  Cro.  Car.  503,  505 ; 
s.  c.  W.  Jones,  406;  Philpot  v.  Hoare,  2  Atk.  219.  But  in  order  that 
an  assignee  should  be  so  far  identified  in  law  with  the  original  cove- 
nantee he  must  have  the  same  estate, — that  is,  the  same  status  or  in- 
heritance,— and  thus  the  same  persona  quoad  the  contract.  But,  as 
will  be  seen,  the  privity  of  estate  which  is  thus  required  is  privity  of 
estate  with  the  original  covenantee,  not  with  the  original  covenantor; 
and  this  is  the  only  privity  of  which  there  is  anything  said  in  the  an- 
cient books.  See  further^  Y.  B.  21  &  22  Edw.  I,  148,  (Rolle's  Ed. ;) 
14  Hen.  IV,  pi.  5.  Of  course  we  are  not  now  speaking  of  cases  of 
landlord  and  tenant,  and  it  will  be  seen  that  the  doctrine  has  no  nec- 
essary connection  with  tenure.  F.  N.  B.  134,  E.  We  may  add  that 
the  burden  of  an  ordinary  warranty  in  fee  did  not  fall  upon  assigns, 
although  it  might  upon  an  heir,  as  representing  the  person  of  his  an- 
cestor.   Y.  B.  :^  &  33  Edw.  I,  516,  (Rolle's  Ed.) 

On  the  other  hand,  if  the  rights  in  question  were  of  the  class  to 
which  commons  belonged,  and  of  which  easements  are  the  most  con- 
spicuous type,  these  rights,  whether  created  by  prescription,  grant,  or 
covenant,  when  once  acquired  were  attached  to  the  land,  and  went  with 
it,  irrespective  of  privity,  into  all  hands,  even  those  of  a  disseizor. 
"So  a  disseizor,  abator,  intruder,  or  the  lord  by  escheat,  etc.,  shall  have 
them  as  things  annexed  to  the  land."  Chudleigh's  Case,  ubi  supra. 
See  1  Britt.  (Nich.  Ed.)  361;  Keilw.  145,  146,  pi.  15;  F.  N.  B.  180, 
N;  Sir  H.  Nevil's  Case,  Plowd.  377,  381.  In  like  manner,  when,  as 
was  usual,  although  not  invariable,  the  duty  was  regarded  as  falling 
upon  land,  the  burden  of  the  covenant  or  grant  went  with  the  servient 


508  RIGHTS   IN   THE   LAND   OF  ANOTHER  (Part  2 

land  into  all  hands,  and  of  course  there  was  no  need  to  mention  as- 
signs. See  cases  supra  et  infra.  The  phrase  consecrated  to  cases 
where  privity  was  not  necessary  was  transit  terra  cum  onere.  Bract, 
fol.  382,  a,  b;  Fleta,  VI,  c.  23,  §  17.  See  Y.  B.  29  Edw.  I,  360,  (Rolle's 
Ed.;)  Keilw.  113,  pi.  45.  And  it  was  said  that  "a  covenant  which 
runs  and  rests  with  the  land  lies  for  or  against  the  assignee  at  common 
law,  quia  transit  terra  cum  onere,  although  the  assignee  be  not  named 
in  the  covenant."  Hyde  v.  Dean  of  Windsor,  Cro.  Eliz.  552;  Id.  457; 
s.  c,  Co.  R.  24a ;  Albore,  399. 

It  is  not  necessary  to  consider  whether  possession  of  the  land  alone 
would  have  been  sufficient  to  maintain  the  action  of  covenant.  It 
is  enough  for  our  present  purposes  that  it  carried  the  right  of  proper- 
ty. Neither  is  it  necessary  to  consider  the  difficulties  that  have  some- 
times arisen  in  distinguishing  rights  of  this  latter  class  from  pure  mat- 
ters of  contract,  by  reason  of  their  having  embraced  active  duties  as  well 
as  those  purely  passive  and  negative  ones,  which  are  plainly  interests 
carved  out  of  a  servient  estate  and  matters  of  grant.  The  most  con- 
spicuous example  is  Pakenham's  Case,  Y.  B.  42  Edw.  Ill,  3  pi.  14, 
where  the  plaintiff  recovered  in  covenant  as  terra-tenant,  although  not 
heir,  upon  a  covenant  or  prescriptive  duty  to  sing  in  the  chapel  of  his 
manor.  Spencer's  Case,  5  Coke,  16a,  17b.  Another  which  has  been 
recognized  in  this  commonwealth  is  the  quasi  easement  to  have  fences 
maintained.  Bronson  v.  Coffin,  108  Mass.  175,  185,  11  Am.  Rep.  335; 
s.  c.  118  Mass.  156.  Repairs  were  dealt  with  on  the  same  footing. 
They  were  likened  to  estovers  and  other  rights  of  common.  5  Coke, 
24  a,  b;  Hyde  v.  Dean  of  Windsor,  ubi  supra.  See  F.  N.  B.  127; 
Spencer's  Case,  ubi  supra;  Ewre  v.  Strickland,  Cro.  Car.  240;  Brett 
V.  Cumberland,  1  RoUe,  359,  360;  and  other  examples  might  be  giv- 
en. See  Bract.  382,  a,  b ;  Fleta,  VI,  c.  23,  §  17 ;  Y.  B.  20  Edw.  I, 
360;  Keilw.  2a,  pi.  2;  Y.  B.  6  Hen.  VII,  14b,  pi.  2;  Co.  Litt.  384b, 
385a;  Cockson  v.  Cock,  Cro.  Jac.  125;  Bush  v.  Cole,  12  Mod.  24; 
s.  c,  1  Salk.  196 ;  1  Show.  388 ;  Carth.  232 ;  Sale  v.  Kitchingham,  10 
Mod.  158.  The  cases  are  generally  landlord  and  tenant  cases;  but 
that  fact  has  nothing  to  do  with  the  principles  laid  down. 

When  it  is  said,  in  this  class  of  cases,  that  there  must  be  a  privity  of 
estate  between  the  covenantor  and  the  covenantee,  it  only  means  that 
the  covenant  must  impose  such  a  burden  on  the  land  of  the  covenantor 
as  to  be  in  substance,  or  to  carry  with  it,  a  grant  of  an  easement  or  qua- 
si easement,  or  must  be  in  aid  of  such  a  grant,  (Bronson  v.  Coffin,  ubi 
supra,)  which  is  generally  true,  although,  as  has  been  shown,  not  in- 
variably, (Pakenham's  Case,  ubi  supra,)  and  although  not  quite  rec- 
oncilable with  all  the  old  cases,  except  by  somewhat  hypothetical  his- 
torical explanation.  But  the  expression  "privity  of  estate,"  in  this 
sense,  is  of  modern  use,  and  has  been  carried  over  from  the  cases  of 
warranty,  where  it  was  used  with  a  wholly  different  meaning. 

In  the  main,  the  line  between  the  two  classes  of  cases  distinguished 
by  Lord  Coke  is  sufficiently  clear ;  and  it  is  enough  to  say  that  the  pres- 


Ch.  5)  EQUITABLE    ENFORCEMENT   OF   AGREEMENTS  509 

ent  covenant  falls  .into  the  second  class,  if  either.  Notwithstanding 
its  place  among  the  covenants  for  title,  it  purports  to  create  a  pure  neg- 
ative restriction  on  the  use  of  land,  and  we  will  take  it  as  intended  to  do 
so  for  the  benefit  of  the  land  conveyed.  The  restriction  is  in  form 
within  the  equitable  doctrine  of  notice.  Whitney  v.  Union  Ry.  Co.,  11 
Gray,  359,  71  Am.  Dec.  715;  Parker  v.  Nightingale,  6  Allen,  341,  83 
Am.  Dec.  632.  See  Tulk  v.  Moxhay,  2  Phil.  774 ;  Haywood  v.  Bruns- 
wick Building  Soc,  8  Q.  B.  Div.  403;  London  &  S.  W.  Ry.  Co.  v. 
Gomm,  20  Ch.  Div.  562;  Austerberry  v.  Oldham,  29  Ch.  Div.  750. 
But  as  the  deed  is  recorded,  it  does  not  matter  whether  the  plaintiff's 
case  is  discussed  on  this  footing  or  on  that  of  easement. 

The  question  remains,  whether,  even  if  we  make  the  further  as- 
sumption, that  the  covenant  was  valid  as  a  contract  between  the  par- 
ties, it  is  of  a  kind  which  the  law  permits  to  be  attached  to  land  in  such 
a  sense  as  to  restrict  the  Use  of  one  parcel  in  all  hands  for  the  benefit 
of  whoever  may  hold  the  other,  whatever  the  principle  invoked ;  for 
equity  will  no  more  enforce  every  restriction  that  can  be  devised  than 
the  common  law  will  recognize  as  creating  an  easement  every  grant 
purporting  to  limit  the  use  of  land  in  favor  of  other  land.  The  prin- 
ciple of  policy  applied  to  affirmative  covenants,  applies  also  to  negative 
ones.  They  must  ''touch  and  concern"  or  "extend  to  the  support  of 
the  thing"  conveyed.  5  Coke,  16a;  Id.  24b.  They  must  be  "for  the 
benefit  of  the  estate."  Cockson  v.  Cock,  Cro.  Jac.  125.  Or,  as  it  is 
said  more  broadly,  new  and  unusual  incidents  cannot  be  attached  to 
land  by  wav  either  of  benefit  or  of  burden.  Keppell  v.  Bailey,  2  Mvlne 
&  K.  517, '535;  Ackroyd  v.  Smith,  10  C.  B.  164;  Hill  v.  Tupper,  2 
Hurl.  &  C.  121. 

The  covenant  under  consideration,  as  it  stands  on  the  report,  falls 
outside  the  limits  of  this  rule,  even  in  the  narrower  form.  In  what 
way  does  it  extend  to  the  support  of  the  plaintiff's  quarry?  It  does 
not  make  the  use  or  occupation  of  it  more  convenient.  It  does  not  in 
any  way  aflFect  the  use  or .  occupation ;  it  simply  tends  indirectly  to 
increase  its  value,  by  excluding  a  competitor  from  the  market  for  its 
products.  If  it  be  asked  what  is  the  difference  in  principle  between  an 
easement  to  have  land  unbuilt  upon,  such  as  was  recognized  in  Brooks 
v.  Reynolds,  106  Mass.  31,  and  an  easement  to  have  a  quarry  left  unop- 
ened, the  answer  is  that,  whether  a  difference  of  degree  or  of  kind,  the 
distinction  is  plain  between  a  grant  or  covenant  that  looks  to  direct 
physical  advantage  in  the  occupation  of  the  dominant  estate,  such  as 
light  and  air,  and  one  which  only  concerns  it  in  the  indirect  way  which 
we  have  mentioned.  The  scope  of  the  covenant  and  the  circumstanc- 
es show  that  it  is  not  directed  to  the  quiet  enjoyment  of  the  dominant 
land. 

Again,  this  covenant  illustrates  the  further  meaning  of  the  rule 
against  unusual  incidents.  If  it  is  of  a  nature  to  be  attached  to  land, 
as  the  plaintiff  contends,  it  creates  an  easement  of  monopoly, — an 
easement  not  to  be  competed  with, — and  in  that  interest  alone  a  right 


510  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

to  prohibit  one  owner  from  exercising  the  usual  incidents  of  prop- 
erty. It  is  true  that  a  man  could  accomplish  the  same  results  by  buy- 
ing the  whole  land  and  regulating  production.  But  it  does  not  follow 
because  you  can  do  a  thing  in  one  way  that  you  can  do  it  in  all ;  and 
we  think  that  if  this  covenant  were  regarded  as  one  which  bound  all 
subsequent  owners  of  the  land  to  keep  its  products  out  of  commerce, 
there  would  be  much  greater  difficulty  in  sustaining  its  validity  than 
if  it  be  treated  as  merely  personal  in  its  burden.  Whether  that  is  its 
true  construction  as  well  as  its  only  legal  operation,  and  whether,  so 
construed,  it  is  or  is  not  valid,  are  matters  on  which  we  express  no 
opinion.    Bill  dismissed. ^^ 

12 Ace:  Bill  by  the  covenantee  aarainst  the  assignee  of  the  covenantor, 
Kettle  River  R.  Co.  v.,  Eastern  Ry.  Co.,  of  Minnesota,  41  Minn.  461,  43  N. 
W.  469,  6  L.  R.  A.  Ill  (1SS9) ;  Tardy  v.  Creasy,  81  Va.  553,  59  Am.  Rep. 
676  (1SS6) ;  assignee  of  covenantee  against  assigiiee  of  covenantor,  Brew^er 
V.  Marshall,  19  N.  J.  Eq.  537,  97  Am.  Dec.  679  (1868). 

One  Lewis  ov^'ned  land  on  the  Illinois  river  and  ran  a  ferry  across  the 
river ;  he  conveyed  to  the  grantor  of  the  appellee  in  this  case  another  piece 
of  land  on  the  river  with  a  stipulation  in  the  deed  that  the  grantee,  his 
heirs  and  assigns,  should  not  establish  a  ferry  thereon  without  the  consent 
of  Lewis,  his  heirs  and  assigns.  The  appellee  ran  a  ferry  from  the  second 
piece  without  the  consent  of  Lewis  or  of  the  appellant  who  had  purchased 
from  I^ewis  tlie  first  mentioned  lot.  Appellant  sought  an  injunction.  The 
court  granted  the  injunction,  saying,  per  Craig,  J.:  "Appellee  purchased 
with  notice  of  the  agreement  in  the  deed  under  which  his  grantor  derived 
title,  as  the  deed  had  been  upon  record  for  many  years,  and  it  can  not  be 
claimed  he  was  misled  or  in  any  manner  deceived,  and,  under  the  authori- 
ties cited,  it  is  within  the  power  of  a  court  of  equity  to  enforce  the  contract 
upon  which,  alone,  Lewis,  tlie  original  owner,  parted  with  the  title  to  the 
land,  and  compel  appellee  to  abide  by  its  terms  and  conditions.  It  would 
be  a  strange  doctrine,  indeed,  to  hold  that  an  owner  of  real  estate  could 
not  convey  a  part,  and  restrict  its  use  in  such  a  manner  as  not  to  impair  or 
lessen  in  value  the  portion  retained.  We  are  aware  of  no  restriction  upon 
the  right  of  an  owner  to  convey  upon  such  terms  and  conditions  as  he  may 
see  proper,  and  as  may  be  acceptable  to  the  grantee,  except  that  the  right 
should  be  exercised  with  proper  regard  to  public  policy,  and  that  the  con- 
veyance should  not  be  made  in  restraint  of  trade.  When  a  vendee  pur- 
chases with  full  notice  of  a  valid  agreement-  between  his  vendor  and  the 
original  owner,  concerning  the  manner  in  which  the  property  is  to  be  occu- 
pied, it  is  but  a  reasonable  and  equitable  requirement  to  hold  him  bound  to 
abide  by  the  contract  under  which  the  land  was  conveyed.  We  are,  there- 
fore, of  opinion,  that  the  provision  in  the  deed  proliibiting  the  use  of  the 
eight  acre  tract  for  ferry  purposes,  is  obligatory  upon  appellee,  and  it  was 
within  the  power  of  a  court  of  equity  to  enjoin  him  from  using  the  land  in 
a  manner  and  for  a  purpose  actually  prohibited  by  the  terms  of  one  of  the 
deeds  which  is  a  link  in  the  chain  of  title  under  which  he  holds  the  land." 
Frye  v.  Partridge,  82  111.  267,  272-  (1876). 

Ace:  Robbins  v.  "Webb,  68  Ala.  393  (1880);  covenantee  against  assignee 
of  covenantor.  Hodge  v.  Sloan,  107  N.  Y.  244,  17  N.  E.  335,  1  Am.  St.  Kep. 
816  (18S7) ;  Stines  v.  Dorman,  25  Ohio  St.  580   (1874). 

See,  also,  Keppell  v.  Bailey,  2  M.  &  K.  517  (1834);  Taylor  v.  Owen,  2 
Blackf.  (Ind.)  301.  20  Am.  Dec.  115  (1830),  ante,  p.  380 ;  Lynn  v.  Mt.  Savage 
Iron  Co..  34  Md.  603  (1S71) ;  Bald  Eagle  Val.  R.  Co.  v.  Nittanv  Val.  R.  Co., 
171  Pa.  284,  33  Atl.  239,  29  L.  R.  A.  423,  50  Am.  St.  Rep.  807  (1895). 


Ch.  5)  EQUITABLE    ENIOIICEMENT   OF   AGREEMENTS  511 

SECTION  2.— RUNNING  OF  BENEFIT  AND  BURDEN 


MASTER  V.  HANSARD. 

(Court  of  Appeal,  1S7G.     L.  R.  4.  Ch.   D.  718.) 

By  indenture  dated  the  1st  of  December,  1853,  Hansard  and  Rogers 
demised  to  one  Masters  a  piece  of  ground  at  the  Anerley  Road,  Penge, 
with  a  building  upon  it  known  as  the  Crystal  Palace  Hotel,  for  the 
term  of  ninety-nine  years,  from  the  24th  of  June,  1852.  The  deed  con- 
tained a  covenant  by  Masters  that  he,  his  executors,  administrators, 
or  assigns,  would  not  during  the  term  do  anything  upon  the  premises 
which  might  be  an  annoyance  to  the  neighbourhood  or  to  the  lessees 
or  tenants  of  the  lessors,  their  heirs  or  assigns,  or  diminish  the  value 
of  the  adjacent  property,  nor  should  nor  would  erect  or  build,  or  cause 
or  permit  to  be  erected  or  built,  upon  the  said  piece  or  parcel  of 
ground  thereby  demised  iany  dwelling-house,  outbuilding,  coach-house, 
stable,  or  other  building  nearer  tlian  tw^enty  feetto  the  Anerley  Road, 
and  also  should  not  nor  would  during  the  term  erect  or  cause  or  per- 
mit to  be  erected  upon  the  demised  ground  any  other  messuage,  build- 
ing, or  erection  whatsoever  without  first  submitting  Jhe  plans  thereof 
to  the  lessors,  their  assigns,  and  obtaining  their  approval  of  the 
same. 

On  the  14th  of  May,  1858,  Plansard  and  Rogers  demised  to  Hantler 
an  adjoining  piece  of  ground  with  two  houses  tliereon,  for  ninety-four 
years,  from  the  24th  of  June,  1857.  This  lease  contained  a  negative 
covenant  on  the  part  of  the  lessee  identical  in  its  terms  with  the  above 
negative  covenant  contained  in  the  lease  to  Masters.  It  did  not  appear 
that  Hantler  when  he  took  this  lease  knew  anything  of  the  terms  of 
the  lease  to  Masters. 

After  divers  mesne  assignments,  the  leasehold  interest  created 'by 
the  lease  to  Masters  was,  by  indenture  dated  the  12th  of  October,  1875, 
assigned  to  the  Crystal  Palace  Hotel  Company.  The  leasehold  interest 
created  by  the  lease  of  1858  had  in  the  meantime  become  vested  in  the 
plaintiflf.  Miss  Master. 

In  1876  the  Crystal  Palace  Hotel  Company,  determined  to  enlarge  the 
hotel  by  adding  a  new  wing,  and  on  the  10th  of  March,  1876,  wrote  to 
the  lessors  asking  their  permission  to  extend  the  hotel  as  shewn  by  the 
plan.  It  was  not  in  dispute  that  the  additional  building  was  one  the 
erection  of  which  could  have  been  restrained  as  unduly  interfering  with 
the  plaintiff's  lights  had  they  been  ancient  lights.  The  plaintiff  com- 
plained to  the  lessors,  who  stated  that  the  buildings  would  be  pro- 
ceeded with.  The  plaintiff  thereupon  commenced  her  action  against' 
the  lessors  and  the  Crystal  Palace  Flotel  Company,  claiming  that  the 
lessors  might  be  restrained  from  giving  their  approval  to  the  plans,  or 


513  RIGHTS   IN   THE   LAND   OF   ANOTHER  (P^rt  2 

their  consent  to  the  erection  of  any  buildings  which  would  interfere 
with  the  access  of  light  to  the  plaintiff's  house;  that  the  defendants 
might  be  restrained  from  erecting  or  permitting  to  continue  erected  on 
the  lands  of  which  the  company  were  the  tenants  the  building  then  in 
course  of  erection  or  any  other  buildings  which  would  interfere  with 
the  access  of  "light  to  the  plaintiff's  house,  or  diminish  the  value  of  tlie 
house,  and  for  damages  and  further  relief. 

Vice  Chancellor  Bacon  held  that  the  plaintiff  could  not  claim  to  have 
the  restrictive  covenant  enforced  in  her  favour,  but  directed  an  inquiry 
as  to  damages.  The  Crystal  Palace  Hotel  Company  appealed.  The 
appeal  was  heard  on  the  25th  November,  1876. 

Jamds,  L.  J.  I  am  of  opinion  that  this  decree  cannot  be  sustained. 
The  defendants,  the  Crystal  Palace  Hotel  Company,  are  owners  of  a 
property  under  a  demise  for  a  term  of  years,  and  are  erecting  on  it  a 
building  which  may  lawfully  be  erected  unless  they  have  put  themselves 
under  an  obligation  not  to  do  so.  The  plaintiff  is  the  owner  of  an  ad- 
joining property  under  another  demise  for  a  term  of  years  from  the 
same  lessors,  of  later  date  than  that  of  the  defendants;  he  therefore 
cannot  have  acquired,  any  right  against  them,  except  under  some  grant 
which  could  lawfully  be  made.  Now,  the  lessors  could  not  grant  any- 
thing so  as  to  derogate  from  the  rights  of  their  prior  grantee.  The 
respondent,  therefore,  was  obliged  to  rest  his  case  on  the  covenants 
entered  into  by  the  defendants'  predecessor  in  title  with  the  grantor, 
and  the  question  is  whether  those  covenants  bring  the  case  within  the 
rule  which  says  that  the  owner  of  two  tenements  who  grants  one  of 
them  cannot  derogate  from  his  own  grant  by  anything  he  does  on  the 
property  wliich  he  reser^^es,  the  property  granted  becoming  entitled  to 
easements  known  as  easements  derived  by  the  disposition  of  the  own- 
er of  two  tenements.  The  plaintiff  contends  that  though  the  grantor 
when  he  made  the  grant  under  which  the  plaintiff'  claims  had  ceased  to 
be  the  ov/ner  of  the  defendants'  tenement,  he  had  a  right  which  he  could 
have  used  in  such  a  way  as  to  prevent  the  plaintiff's  enjoyment  of  his 
property  being  interfered  with  in  any  way  in  which  the  grantor  would 
not  have  been  allowed  to  interfere  with  it  if  he  had  retained  the  de- 
fendants' propert}^  and  that  this  interest  brings  the  case  within  the 
rule  as  to  the  owner  of  two  tenements.  It  would  be  a  novel  extension 
of  that  doctrine  to  hold  that  not  only  a  grantor  cannot  do  anything  to 
derogate  from  his  own  grant,  but  that  he  is  obliged  to  take  active 
steps  to  prevent  other  persons  from  doing  what  he  might  not  him- 
self do.  It  cannot,  in  my  opinion,  be  said,  that  a  right  under  a  covenant 
is  properly  within  the  meaning  of  this  rule.  Then  the  plaintiff  says: 
"You,  my  lessor,  could,  under  the  covenants  entered  into  with  you  by 
your  other  lessee,  have  prevented  this  erection ;  you  had  and  have  that 
right ;  you  have  granted  me  a  piece  of  ground  with  a  house  on  it,  and 
you  ought  to  enforce  those  covenants  for  my  benefit."  Now,  when  the 
plaintiff  took  his  lease  he  had  no  knowledge  of  the  nature  of  the  title 
to  tlie  adjoining  property;   all  he  knew  was  that  the  piece  of  property 


Ch.  5)  EQUITABLE    ENFORCEMENT    OF   AGREEMENTS  513 

adjoining  his  had  once  been  part  of  tlie  same  estate ;  he  knew  noth- 
ing of  the  covenant;  the  grant  to  him  contains  no  notice  of  it,  and  it 
would  be  strange  to  say  that  a  man  who  has  taken  a  covenant  for  his 
own  benefit  can  be  prevented  from  dealing  with  it  for  his  own  benefit 
because  he  has  granted  parcels  of  the  land  to  other  people.  The  cov- 
enant is  not  mentioned  in  the  plaintiff's  lease,  and  it  cannot  have  been 
the  intention  of  the  parties  thus  to  restrict  the  use  of  a  covenant  which 
was  entered  into,  not  for  the  benefit  of  the  adjoining  land,  but  for  the 
benefit  of  the  owner  of  the  estate,  that  he  mJght  be  able  to  make  the 
most  of  it.  It  would  be  too  great  an  extension  of  the  doctrine  of  implied 
obligation  to  raise  by  implication  a  right  in  the  nature  of  an  equitable 
assignment  of  the  benefit  of  the  covenant.  There  was  no  bargain  as  to 
enforcing  the  covenant  for  the  benefit  of  the  plaintiff,  and  we  can- 
not imply  one.^^ 


RENALS  V.  COWLISHAW. 

(High  Court  of  Justice,  Chancery  Division,  1878.     L.  R.  9  Ch.  D.  125.) 

By  an  indenture  dated  the  29th  of  September,  1845,  Messrs.  Hoby, 
Winterbotham,  and  Russell,  as  the  devisees  in  trust  for  sale  of  a  man- 
sion-house and  residential  property  known  as  the  Mill  Hill  estate,  and 
of  certain  pieces  of  land  adjoining  thereto,  sold  and  conveyed  two  of 
these  adjoining  pieces  of  land  to  one  Francis  Shaw,  in  fee,  and  Shaw 
thereby  for  himself,  his  heirs,  executors,  and  administrators,  covenant- 
ed with  Hoby,  Winterbotham,  and  Russell,  their  heirs,  executors,  ad- 
ministrators, and  assigns,  not  to  build  upon  the  lands  thereby  conveyed 
within  a  certain  distance  from  a  particular  road  leading  "to  the  Mill 
Hill  house  and  property  belonging  to  the  said  trustee" ;  that  the  garden 
walls  or  palisades  to  be  set  up  along  the  side  of  the  said  road  should 
stand  back  a  certain  distance  from  the  centre  of  the  road ;  that  any 
house  to  be  built  on  the  land  adjoining  the  road  should  be  of  a  certain 
value,  and  of  an  elevation  at  least  equal  to  that  of  the  houses  on  a 
particular  road;  and  that  no  trade  or  business  should  be  carried  on 
in  any  such  houses  or  buildings,  but  that  the  same  should  be  used  as 
private  dwelling-houses  only.  The  conveyance  did  not  state  that  this 
covenant  was  for  the  protection  of  the  residential  property,  or  in  ref- 

13  Baggallay  and  Bramwell,  L.  J  J.,  delivered  concurring  opinions. 

A.  leased  one  of  a  row  of  shops  to  B.  and  covenanted  that  he  would  not 
lease  any  of  the  other  shops  for  the  purpose  of  the  trade  of  a  greengrocer. 
B.  assigned  his  lease  to  C.  A.  leased  another  shop  to  X.,  with  a  covenant 
by  X.  that  he  would  use  the  premises  as  an  oil  warehouse  only.  X.  later 
began  to  use  it  as  a  greengrocery.  C.  brought  action  against  A.  and  X.  for 
an  injunction  to  restrain  A.  from  letting  or  continuing  to  let  the  premises  to 
X.  to  be  used  as  a  greengrocery  or  from  permitting  them  to  be  so  used,  and 
to  restrain  X.  from  so  using  them.  Held,  C.  has  no  cause  of  action  against 
either  defendant.  Ashby  v.  Wilson,  [1900]  1  Ch.  66  (1899).  See,  also.  Kemp 
V.  Bird,  L.  R.  .5  Ch.  D.  549  (1877) ;  University  Club  of  Chicago  v.  Deakin,  265 
111.  257,  106  N.  E.  790,  L.  R.  A.  1915C,  854  (1914),  post,  p.  613. 

BlG.RlGHTS— 33 


514  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

erence  to  the  other  adjoining  pieces  of  land,  or  make  any  statement  or 
reference  thereto. 

The  same  trustees  also  sold  about  this  time  other  pieces  of  lands 
adjoining  the  Mill  Hill  estate;  and  the  conveyance  to  the  purchaser  in 
each  case  contained  restrictive  covenants  similar  to  those  above  men- 
tioned. It  was  alleged  by  t^e  plaintiffs  in  their  statement  of  claim  that 
the  intention  of  all  the  restrictive  covenants  was  to  protect  and  main- 
tain the  value  of  the  Mill  Hill  estate,  and  to  secure  the  continuance  of 
the  surrounding  neighborhood  as  purely  residential  in  character. 

The  trustees,  in  December,  1854,  sold  and  conveyed  the  Mill  Hill 
estate  to  T.  P.  Bainbrigge  in  .fee,  and,  Bainbrigge  having  died,  his 
devisees  in  trust,  in  September,  1870,  sold  and  conveyed  the  same  es- 
tate to  the  plaintiffs  as  tenants  in  common  in  fee. 

In  neither  of  these  two  conveyances  were  there  covenants  similar  to 
those  in  the  conveyance  to  Shaw,  but  there  was  in  the  conveyance 
to  the  plaintiffs  a  covenant  by  them  with  their  vendors  not  to  build 
a  public-house  or  carry  on  offensive  trades  upon  a  particular  portion 
of  the  property  conveyed  to  them.  Neither  of  the  two  conveyances 
recited  or  mentioned  in  any  way  the  conveyance  or  sale  to  Shaw,  or 
the  existence  of  any  restrictive  covenant  entered  into  by  Shaw  or  by 
Gadsby,  nor  did  either  of  them  recite  or  mention  the  sales  or  convey- 
ances of  the  other  pieces  of  land  sold  as  above  mentioned. 

There  had  also  been  a  devolution  title  with  regard  to  the  lands  sold 
to  Shaw,  for  after  his  death  Mary  Shaw,  the  person  entitled  under  his 
will,  in  August,  1867,  sold  and  conveyed  part  of  the  lands  comprised  in 
the  indenture  of  September,  1845,  to  John  Gadsby  in  fee,  who,  in  his 
conveyance,  entered  into  covenants  with  Mary  Shaw,  her  heirs,  exec- 
utors, and  administrators,  substantially  identical  mutatis  mutandis  with 
the  restrictive  covenants  contained  in  the  indenture  of  the  29th  of 
September,  1845.  And  subsequently  the  lands  so  conveyed  to  Gads- 
by were  sold  and  conveyed  (with  certain  buildings  erected  thereon) 
by  Gadsby,  or  persons  deriving  title  through  him,  to  the  defendants 
as  tenants  in  common  in  fee. 

The  plaintiffs  alleged  that  the  defendants  were  carrying  on  upon 
their  lands  and  in  contravention  of  the  restrictive  covenants  first  above 
mentioned,  the  trade  of  wheelwrights,  smiths,  and  bent  timber  manu- 
facturers, and  had  erected  a  high  chimney  which  emitted  thick  black 
smoke,  and  that  those  acts  were  destructive  of  the  residential  character 
of  the  neighborhood,  and  had  deteriorated  the  value  and  amenity  of 
the  Mill  Hill  estate.  By  their  action  they  claimed  an  injunction  to 
restrain  the  defendants  from  carrying  on  any  trade  or  business  upon 
their  lands,  and  from  permitting  the  buildings  erected  thereon  to  be 
used  otherwise  than  as  private  houses,  and  from  contravening  in  any 
manner  the  restrictive  covenants  contained  in  the  indenture  of  Sep- 
tember, 1845. 

The  principal  question  argued,  and  that  on  which  the  decision  turn- 
ed, was  as  to  the  right  of  the  plaintiff's  to  sue  upon  these  covenants. 


Ch.  5)  EQUITABLE    ENFORCEMENT   OF   AGREEMENTS  515 

It  appeared  that  no  contract  had  been  entered  into  or  representa- 
tions made,  either  upon  the  occasion  of  the  purchase  by  Bainbrigge 
from  the  trustees,  or  upon  the  purchase  from  Bainbrigge  by  the  plain- 
tiffs, that  the  purchaser  should  have  the  benefit  of  the  covenants  en- 
tered into  by  Shaw  with  the  trustees.     *     *     * 

Hall,  V.  C.  I  think  this  case  is  governed  by  Keates  v.  Lyon,  by 
Child  V.  Douglas,  Kay,  560;  5  D.,  M.  &  G.  739,  as  ultimately  decided 
by  Vice  Chancellor  Wood,  2  Jur.  (N.  S.)  950,  who,  after  granting  an 
interlocutory  injunction  in  the  first  instance,  refused  to  grant  the  plain- 
tiff an  injunction  at  the  hearing,  and  by  the  case  of  Master  v.  Han- 
sard [4  Ch.  D.  724] . 

The  law  as  to  the  burden  of  and  the  persons  entitled  to  the  benefit 
of  covenants  in  conveyances  in  fee,  was  certainly  not  in  a  satisfactory 
state ;  but  it  is  now  well  settled  that  the  burden  of  a  covenant  entered 
into  by  a  grantee  in  fee  for  himself,  his  heirs,  and  assigns,  although 
not  running  with  the  land  at  law  so  as  to  give  a  legal  remedy  against 
the  owner  thereof  for  the  time  beings  is  binding  upon  the  owner  of  it 
for  the  time  being,  in  equity,  having  notice  thereof.  Who,  then  (other 
than  the  original  covenantee),  is  entitled  to  the  benefit  of  the  cove- 
nant? From  the  cases  of  Mann  v.  Stephens,  15  Sim.  Z77 ,  Western  v. 
Macdermott,  Law  Rep.  2  Ch.  72,  and  Coles  v.  Sims,  Kay,  56;  5  D., 
M.  &  G.  1,  it  may,  I  .think,  be  considered  as  determined  that  any  one 
who  has  acquired  land,  being  one  of  several  lots  laid  out  for  sale  ^s 
building  plots  where  the  court  is  satisfied  that  it  was  the  intention  that 
each  one  of  the  several  purchasers  should  be  bound  by  and  should, 
as  against  the  others,  have  the  benefit  of  the  covenants  entered  into 
by  each  of  the  purchasers,  is  entitled  to  the  benefit  of  the  covenant; 
and  that  this  right,  that  is,  the  benefit  of  the  covenant,  enures  to  the 
assign  of  the  first  purchaser,  in  other  words,  runs  with  the  land  of 
such  purchaser.  This  right  exists  not  only  where  the  several  parties 
execute  a  mutual  deed  of  covenant,  but  wherever  a  mutiial  contract 
can  be  sufficiently  established.  A  purchaser  may  also  be  entitled  to 
the  benefit  of  a  restrictive  covenant  entered  into  with  his  vendor  by 
another  or  others  where  his  vendor  has  contracted  with  him  that  he 
shall  be  the  assign  of  it,  that  is,  have  the  benefit  of  the  covenant.  And 
such  covenant  need  not  be  express,  but  may  be  collected  from  the 
transaction  of  sale  and  purchase.  In  considering  this,  the  expressed 
or  otherwise  apparent  purpose  or  object  of  the  covenant,  in  reference 
to  its  being  intended  to  be  annexed  to  other  property,  or  to  its  being 
only  obtained  to  enable  the  covenantee  more  advantageously  to  deal 
with  his  property,  is  important  to  be  attended  to.  Whether  the  pur- 
chaser is  the  purchaser  of  all  the  land  retained  by  his  vendor  when 
the  covenant  was  entered  into,  is  also  important.  If  he  is  not,  it  may 
be  important  to  take  into  consideration  whether  his  vendor  has  sold 
off  part  of  the  land  so  retained,  and  if  he  has  done  so,  whether  or  not 
he  has  so  sold  subject  to  a  similar  covenant:    whether  the  purchaser 


516  RIGHTS  IN  THE   LAND  OF  ANOTHER  (Part  2 

claiming  the  benefit  of  the  covenant  has  entered  into  a  similar  covenant 
may  not  be  so  important. 

The  plaintiffs  in  this  case,  in  their  statement  of  claim,  rest  their  case 
upon  their  being  "assigns"  of  the  Mill  Hill  estate,  and  they  say  that  as 
the  vendors  to  Shaw  were  the  owners  of  that  estate  when  they  sold  to 
Shaw  a  parcel  of  land  adjoining  it,  the  restrictive  covenants  entered  in- 
to by  the  purchaser  of  that  parcel  of  land  must  be  taken  to  have  been 
entered  into  with  them  for  the  purpose  of  protecting  the  Mill  Hill 
estate,  which  they  retained;  and,  therefore,  that  the  benefit  of  that 
restrictive  covenant  goes  to  the  assign  of  that  estate,  irrespective  of 
whether  or  not  any  representation  that  such  a  covenant  had  been  en- 
tered into  by  a  purchaser  from  the  vendors  was  made  to  such  assigns, 
and  without  any  contract  by  the  vendors  that  that  purchaser  should 
have  the  benefit  of  that  covenant.  The  argument  must,  it  would  seem, 
go  to  this  length,  viz.,  that  in  such  a  case  a  purchaser  becomes  entitled 
to  the  covenant  even  although  he  did  not  know  of  the  existence  of  the 
covenant,  and  that  although  the  purchaser  is  not  (as  the  purchasers  in 
the  present  case  were  not),  purchaser  of  all  the  property  retained  by 
the  vendor  upon  the  occasion  of  the  conveyance  containing  the  cove- 
nants. It  appears  to  me  that  the  three  cases  to  which  I  have  referred 
show  that  this  is  not  the  law  of  this  Court;  and  that  in  order  to 
enable  a  purchaser  as  an  assign  (such  purchaser  not  being  an  assign 
of  all  that  the  vendor  retained  when  he  executed  the  conveyance  con- 
taining the  covenants,  and  that  conveyance  not  showing  that  the  bene- 
fit of  the  covenant  was  intended  to  enure  for  the  time  being  of  each 
portion  of  the  estate  so  retained  or  of  the  portion  of  the  estate  of 
which  the  plaintiff  is  assign),  to  claim  the  benefit  of  a  restrictive  cove- 
nant, this,  at  least,  must  appear,  that  the  assign  acquired  his  property 
with  the  benefit  of  the  covenant,  that  is,  it  must  appear  that  the  bene- 
fit of  the  covenant  was  part  of  the  subject-matter  of  the  purchase. 
Lord  Justice  Bramwell,  in  Master  v.  Hansard,  4  Ch.  D.  724,  said: 
"I  am  satisfied  that  tlie  restrictive  covenant  was  not  put  in  for  the 
benefit  of  this  particular  property,  but  for  the  benefit  of  the  lessors  to 
enable  them  to  make  the  most  of  the  property  which  they  retained." 
In  the  present  case  I  think  that  the  covenants  were  put  in  with  a 
hke  object.  If  it  had  appeared  in  the  conveyance  to  Bainbrigge  that 
there  were  such  restrictive  covenants  in  conveyances -already  executed, 
and  expressly  or  otherwise  that  Bainbrigge  was  to  have  the  benefit 
of  them,  he  and  the  plaintiffs,  as  claiming  through  him,  would  have  been 
entitled  to  the  benefit  of  them.  But  there  being  in  the  conveyance  to 
Bainbrigge  no  reference  to  the  existence  of  such  covenants  by  recital  of 
the  conveyances  containing  them  or  otherwise,  the  plaintiffs  cannot  be 
treated  as  entitled  to  the  benefit  of  them.  This  action  must  be  dis- 
missed with  costs. ^* 

i4Affirmed  L.  R.  11  Ch.  D.  866  (1879). 

Ace:  Berryman  v.  Hotel  Savoy  Co.,  160  Cal.  559,  117  Pac.  677,  37  L.  R. 
A.  (N.  S.)  5   (1911);  Badger  v.  Boardman,  16  Gray  (Mass.)  559   (1860);  Mc- 


Ch.  5)  .    EQUITABLE    ENFORCEMENT    OF    AGREEMENTS  517 

WEIL  V.  HILL. 

(Supreme  Court  of  Alabama,  1915.     193  Ala.  407,  69  South.  438.) 

Sayre,  J.^**  Appellee,  Hill,  owns  the  lot,  50  by  165  feet,  on  the 
southwest  corner  of  Perry  street  and  Jeff  Davis  avenue,  in  the  city  of 
Montgomery.  On  the  lot  is  a  residence  which  stands  47V2  ^^et  from 
the  line  of  Perry  street,  on  which  the  property  fronts.  Appellee  was 
preparing  to  move  his  house  nearer  to  the  Perry  street  line,  when 
appellant,  Weil,  who  owns. and  occupies  the  lot  next  south  of  appel- 
lant's  [appellee's]   lot,  filed  this  bill  to  enjoin  the  operation. 

There  are  two  branches  to  appellee's  title.  On  May  1,  1909,  he  took 
a  warranty  deed  from  Mrs.  Winn,  in  which  the  property  conveyed 
is  described  as  fronting  50  feet  on  Perry  and  running  back  165  feet 
on  Jeff  Davis.  Ten  days  later  he  took  from  Sloane  Young  and  his 
wife,  Cora,  a  deed  of  all  their  right,  title,  and  interest,  "both  in  ex- 
pectancy and  in  reversion,"  in  and  to  the  rear  35  feet  of  the  same  lot, 
which  part  Young  had  purchased  from  one  Rugely,  and  to  which,  for 
convenience,  we  will  refer  as  the  Rugely  lot.  Prior  to  September  25, 
1901,  in  pursuance  oi  an  understanding  between  Young  and  Josie  W. 
Hubbard,  who  afterwards  became  Mrs.  Winn,  and  in  anticipation  of 
the  deed  to  be  presently  mentioned,  the  latter  had  moved  her  house  on 
the  lot  she  then  owned  back  on  a  line  with  the  house  now  occupied 
by  appellant  on  the  adjacent  lot,  and  then  on  the  last-mentioned  date 
Young,  his  wife'  joining  in  the  deed,  on  the  recited  consideration  of 
$1  and  "the  covenants  and  agreements"  contained  in  the  deed,  con- 
veyed the  Rugely  lot  to  Josie  W.  Hubbard  by  a  deed  containing,  after 
a  description  of  the  property  and  customary  v\fords  of  conveyance,  the 
following  clause  or  stipulation: 

"But  it  is  covenanted  and  agreed  by  the  said  Josie  W.  Hubbard, 
her  heirs,  legal  representatives,  and  assignees,  and  it  is  made  a  cov- 
enant running  with  said  land,  that  no  house  or  other  structure  shall 
ever  be  erected  on  the  lot  immediately  east  of  the  lot  hereby  conveyed 
on  the  southwest  comer  of  Perry  street  and  Jeff  Davis  avenue,  near- 
er or  closer  to  the  said  Perry  street  than  the  house  now  standing  on 
the  said  lot,  the  front  of  which  is,  to  wit,  forty-seven  and  one-half 
feet  west  of  the  west  line  of  said  Perry  street,  and  a  violation  of  this 
covenant  shall  immediately  work  a  reversion  to  the  grantors  herein, 
their  heirs  and  assignees,  of  the  land  hereby  conveyed :  Provided, 
however,  that  should  the  residence,  as  now  occupied  by  us,  be  rebuilt, 
remodeled,  moved,  or  in  other  respects  be  changed  or  altered,  so  as 
to  place  same  or  other  permanent  improvements  on  said  lot  nearer  to 
said  Perry  street  than  now  located,  then  this  obligation  shall  be  by  such 
change  in  location  of  said  house  or  buildings  on  said  lot  so  modified  as 

Nichol  V.  Townsend,  73  N.  J.  Eq.  276,  67  Atl.  93S  (1907) ;  Hutchinson  v.  Thoui- 
as,  190  Pa.  242,  42  Atl.  681  (1899). 
16  Part  of  the  oijinion  is  omitted. 


518  RIGHTS   IN   THE   LAND   OF   ANOTHER  .        (Part   2 

to  require  only  that  the  house  and  other  improvements  on  the  lot  of 
said  Josie  W.  Hubbard  shall  maintain,  with  such  changes  or  improve- 
ments as  may  be  made  upon  the  premises  owned  by  us,  the  same  rel- 
ative position  to  the  said  Perry  street  as  is  now  established." 

This  deed  was  recorded  in  July,  1906,  thus  putting  appellee  upon  no- 
tice of  it,  and  upon  the  quoted  clause  appellant  bases  his  claim  of  right 
to  the  injunction  sought.  His  theory  is  that  the  clause  should  be  held 
effectual  in  equity  by  way  of  estoppel  or  implied  covenant  to  impose 
upon  the  lot  previously  owned  by  Josie  W,  Hubbard  the  burden  of  a. 
"perpetual  building  restriction,  a  negative  easement  or  servitude,  ap- 
purtenant to  Ml"s.  Young's  adjacent  lot,  now  owned  by  him,  and  bind- 
ing upon  any  purchaser  of  the  Hubbard  lot  having  notice — this,  though 
the  instrument  of  conveyance  containing  the  clause  was  not  subscrib- 
ed by  the  grantee  and  would  fix  a  servitude  on  property  not  the  sub- 
ject of  conveyance  for  the  benefit  of  the  property  of  a  grantor  whose 
interest  in  the  property  conveyed  was  nothing  more  than  an  inchoate 
right  of  dower. 

The  title  by  which  appellant  claims  to  have  acceded  to  the  right  in 
question  has  two  branches  also.  Cora  Young  and  husband  mortgaged 
the  lot  to  the  Travelers'  Insurance  Company  on  June  27,  1899.  It 
will  be  observed  that  this  was  before  the  execution  of  the  deed  con- 
taining the  clause.  This  mortgage  was  foreclosed  on  April  5,  1906, 
and  appellant  became  the  purchaser  and  received  a  deed  from  the  per- 
son executing  the  power.  This  title  is  stated  in  the  bill,  but  we  do  not 
consider  that  it  affects  the  question  under  consideration.  In  the  mean- 
time— that  is,  on  December  28,  1901 — Cora  and  Sloane  Young  had 
conveyed  the  lot  to  J.  H.  Clisby,  "together  with  all  improvements  and 
appurtenances  thereunto  belonging."  In  1908  Clisby  conveyed  the  lot 
to  Weil,  describing  it  by  metes  and  bounds,  and  to  this  description  add- 
ing words  and  figures  which,  with  slight  changes  to  avoid  confusion, 
may  be  quoted  as  follows : 

"Being  the  same  property  described  in  the  mortgage  of  Cora  Young 
and  Sloane  Young,  her  husband,  to  the  Travelers'  Insurance  Company, 
date  June  27,  1899,  recorded  in  Mortgage  Book  160,  page  272,  in  the 
office  of  the  judge  of  probate  of  Montgomery  county,  Ala.,  except  one 
piece  thereof  heretofore  released  therefrom  as  described  in  Deed  Book 
45,  page  307,  with  an  alleyway  ten  feet  w^ide  running  into  said  proper- 
ty from  the  south  side  of  Jeff  Davis  avenue." 

There  was  no  other  mention  of  appurtenances. 

It  was  held  in  the  court  below  on  these  facts  that  appellant's  case 
was  devoid  of  equity,  and  from  the  decree  dismissing  his  bill  this  ap- 
peal has  been  taken. 

In  determining  the  intention  expressed  by  the  deed  of  September 
25,  1901,  we  must  look  to  the  terms  of  the  deed  itself,  and  then,  if 
there  be  any  doubt,  to  the  relation  between  the  properties  and  the  cir- 
cumstances of  the  parties  at  the  time  so  far  as  disclose'd  by  the  bill, 
to  the  end  that  good  sense  and  sound  equity  may  be  applied  in  the 


Ch.  5)  EQUITABLE    ENFORCEMENT   OF   AGREEMENTS  519 

case.  Appellant  assumed,  of  course,  the  burden  of  stating  facts  that 
would  show  the  intent  to  create  a  right  in  the  nature  of  an  easement 
over  the  land  of  the  grantee,  that  the  intent  had  been  so  expressed 
as  to  become  binding  on  land,  and  his  accession  to  the  right;  but,  the 
right  appearing,  the  court  will  not  presume  that  it  was  intended  to  be 
in  gross,  or  personal  to  the  grantor,  if  it  can  fairly  be  construed  as 
appurtenant  to  his  land ;  and  one  test,  approved  by  experience  and 
common  sense,  is  that  the  restriction  would  naturally  operate  to  en- 
hance the  value  of  the  grantor's  adjacent  property,  whether  retained 
by  them  or  conveyed  to  another.  "If  this  be  so,  it  is  a  strong  circum- 
stance to  indicate  that  the  restriction  was  not  intended  for  the  mere 
personal  benefit  of  the  grantor,  but  as  a  permanent  servitude  beneficial 
to  the  owner  of  the  land,  whoever  he  may  be,  and  appendant  to  the 
premises."  McMahon  v.  Williams,  79  Ala.  289.  And,  besides,  in 
this  case,  from  the  language  of  the  clause  itself,  considered  apart  from 
the  stipulation  for  a  "reversion,"  it  is  apparent  that  the  parties  intended 
that  the  advantage  contracted  for  should  be  permanent  and  appurte- 
nant to  the  grantors'  adjacent  land — this,  for  one  reason,  among  oth- 
ers, that  the  covenant  was  made  "a  covenant  running  with  said  land." 
Appellee  would  refer  these  words  to  the  land  granted  and  deny  their 
application  to  the  adjacent  lot  previously  owned  by  the  grantee.  But 
on  looking  to  the  substance  of  things  it  is  seen  that  appellee's  application 
would  render  the  words  insensible.  If  an  easement  was  created  run- 
ning with  any  land,  it  runs  with  the  land  upon  which  it  was  fastened 
as  a  burden.  It  would  be  quite  anomalous  to  destroy  the  entire  bene- 
ficial meaning  of  the  covenant  on  the  sole  consideration  that  the  par- 
ties made  an  inapt  use  of  the  single  word  of  reference,  "said."  Nor, 
on  the  other  hand,  was  the  easement  made  personal  by  reason  of  the 
fact  that  it  was  not  expressly  limited  to  the  "heirs"  of  the  grantors, 
since  it  appeared  otherwise  from  the  deed  that  the  right  to  enjoy  the 
easement  was  not  limited  to  the  lifetime  of  the  grantors  therein — this, 
in  view  of  the  statute  which  provides  that  words  of  inheritance  are 
not  necessary  to  the  creation  of  a  fee.  Code,  §  3396;  Jones  on  Ease- 
ments, §  45, 

'  There  can  be  no  doubt,  aside  from  what  effect  may  be  given  to  the 
provision  for  a  "reversion,"  that  Josie  Hubbard,  by  her  acceptance  of  • 
the  deed  to  the  Rugely  lot,  containing  the  clause  in  question,  agreed 
for  herself,  her  heirs,  legal  representatives,  and  assigns,  that  no  house 
or  other  structure  should  ever  be  erected  on  the  lot  she  previously  own- 
ed nearer  to  Perry  street  than  the  house  then  standing  on  the 
lot.    *    *    * 

But  appellee  insists  that  the  clause  as  a  whole  amounted  to  nothing 
more  than  a  condition  upon  the  grantee's  title  in  the  Rugely  lot,  and 
that  the  condition  has  been  extinguished  by  the  unity  of  the  condition 
and  the  fee  which  has  been  effected  by  the  quitclaim  deed  of  the 
Youngs  to  him.  Unmistakably  the  clause  does  connect  the  covenant 
with  the  condition,  and  makes  it  manifest  that  the  condition  was  in- 


520  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

serted  to  secure  the  advantage  expressed  in  the  covenant.  Nor  is  it 
to  be  escaped  that  the  stipulation  was  so  framed  that  a  violation  of 
the  covenant  would  operate  immediately,  and  therefore  without  the 
necessity  for  an  entry,  to  determine  the  estate  granted.  The  clear  le- 
gal effect  was  to  create  a  conditional  limitation  upon  the  fee  granted, 
leaving  in  the  grantors  a  possibility  of  reverter  conditioned  upon  an 
unobstructed  flow  of  light  and  air  and  view  across  the  front  of  the 
adjacent  Hubbard  lot.  But  the  covenant  and  the  condition,  though 
thus  connected,  affected  different  estates.  The  condition  affected 
the  title  to  the  Rugely  lot  and  inured  to  the  benefit  of  the  grantors, 
their  heirs  and  assigns.  The  covenant  imposed  upon  the  front  47^2 
feet  of  the  Hubbard  lot  a  servitude  for  the  benefit  of,  and  annexed 
to,  the  grantors'  adjacent  lot.  This  servitude  was  the  real  considera- 
tion for  the  grant.  The  condition,  imposed  for  security,  was  an  in- 
corporeal hereditament  in  the  grantors,  the  legal  title  to  which  would 
pass  only  by  express  grant.  But  the  easement,  as  we  have  seen,  pass- 
ed by  a  grant  of  the  land  to  which  it  was  appurtenant.  There  is  no 
reason,  therefore,  why  the  extinguishment  by  the  Youngs  of  the  con- 
dition upon  one  title  should  affect  the  servitude  appurtenant  to  the 
other  which  had  previously  passed  by  their  deed  to  Clisby.  An  exist- 
ing easement  appurtenant  to  land  passes  by  the  deed  of  the  owner  of 
the  land  to  his  grantee  and  follows  the  land  without  any  mention  what- 
ever.   Jones  on  Easements,  §§  22,  23,  and  authorities  cited.    *    *    * 

It  is  next  insisted  that  a  covenant  purporting  to  ireserve  an  easement 
in  favor  of  one  other  than  the  grantor  is  void.  It  is  true  that  an  ease- 
ment cannot  in  strict  law  be  made  the  subject  of  a  reservation  or  ex- 
ception, for  it  does  not  issue  out  of  land  as  a  profit,  nor  is  it  parcel  of 
the  land.  But  it  is  to  be  observed,  in  line  with  what  we  have  previously 
said  and  the  authorities  cited  above,  that  in  equity  at  least  the  effort  is 
to  construe  and  enforce  contracts  according  to  the  true  intention  of 
the  parties  so  long  as  they  violate  no  principle  of  public  policy,  and 
such  a  reservation  or  exception  is  construed  precisely  as  if  it  were  a 
counter  grant  by  the  grantee,  and  thus,  in  a  case  like  this,  effect  is 
given  to  the  plain  terms  of  the  contract.  Goold  v.  G.  W.  Deep  Coal 
Co.,  2  De  G.,  J.  &  S.  600;  Dyer  v.  Sanford,  9  Mete.  (Mass.)  395,  43 
Am.  Dec.  399.  In  this  bill  there  is  no  attempt  to  enforce  an  easement 
created  by  reservation  or  exception.  The  effort  is  to  enforce  a  notion- 
al counter  grant,  or  a  covenant  implied  by  the  grantee's  acceptance  of 
the  benefits  of  the  deed  to  him,  and  the  court  of  chancery  will  compel 
performance,  whether  the  servitude  bargained  for  is  imposed  upon 
the  land  granted  or  other  land  of  the  grantee  so  situated  with  respect 
to  land  of  the  grantor  as  that  the  former  may  naturally  and  reasona- 
bly be  made  servient  to  the  latter.^®  Mrs.  Young  joined  in  the  con- 
veyance, and  though  her  interest  in  the  tract  conveyed  was  only  an 

18  See  Rogers  v.  Hosegood,  [1900]  2  Ch.  388;  Hays  v.  St.  Faul  M.  Jfl. 
Church,  196  IlL  633,  63  N.  E.  1040  (1902). 


Ch.  5)  EQUITABLE   ENFORCEMENT   OF   AGREEMENTS  521 

inchoate  right'  of  dower,  her  release  constituted  a  valuable  considera- 
tion for  her  execution  of  the  deed.    Gordon  v.  Tweedy,  71  Ala.  202. 

These  considerations  lead  us  to  conclude  that  the  decree  denying 
appellant's  right  to  the  easement  in  question,  and  dismissing  his  bill 
for  want  of  equity,  was  error. 

Reversed  and  remanded. 

Anderson,  C.  J.,  and  McClEllan  and  Gardner,  JJ.,  concur." 


PARKER  V.  NIGHTINGALE. 

(Supreme  Judicial  Court  of  Massacliusetts,  1863.    6  Allen,  341,  83  Am.  Dec. 

632.) 

Bill  in  equity,  setting  forth  that  before  the  erection  of  houses  upon 
Hay  ward  Place  in  the  city  of  Boston,  the  land  upon  and  adjoining 
the  same  was  owned  by  Lemuel  Hayward ;  that  upon  his  decease  it 
was  arranged  among  his  heirs  that  the  said  land  should  be  laid  out 
into  a  court  or  street,  to  be  occupied  exclusively  for  dwelling-houses ; 
that  for  this  purpose  the  land  was  surveyed  and  laid  out  into  a  court, 
with  house  lots  of  convenient  size,  and  numbered,  following  the  course 
of  the  court ;   that  this  agreement  was  made  to  facilitate  the  sale  and 

iTAcc:  Peck  v.  Conway.  119  Mass.  546  (1876);  Codman  v.  Bradley,  2U1 
]Mass.  361,  87  N.  E.  591  (1909) ;  Coughlin  v.  Barker,  46  Mo.  App.  54  (1891) ; 
Hills  V.  Miller,  3  Paige  (N.  Y.)  254,  24  Am.  Dec.  218  (1832) ;  Coudert  v.  Sayre, 
46  N.  J.  Eq.  386,  19  Atl.  190  (1S90);  Clark  v.  Martin,  49  Pa.  289  (1865). 

See  Judd  v.  Robinson,  41  Colo.  222,  92  Pac.  724,  124  Am.  St.  Rep.  128,  14 
Ann.  Cas.  1018  (1907). 

"When  the  benefit  has  been  once  clearly  annexed  to  one  piece  Of  land, 
it  passes  by  assignment  of  that  land,  and  may  be  said  to  run  with  it,  in 
contemplation  as  well  of  equity  as  of  law,  without  proof  of  special  bargain 
or  representation  on  the  assignment.  In  such  a  case  it  runs,  not  because 
the  conscience  of  either  party  is  affected,  but  because  the  purchaser  has 
bought  something  which  inhered  in  or  was  annexed  to  the  land  bought. 
This  is  the  reason  why,  in  dealing  with  the  burden,  the  purchaser's  conscience 
is  not  affected  by  notice  of  covenants  which  were  part  of  the  original  bar- 
gain on  the  first  sale,  but  were  merely  personal  and  collateral,  while  it  is 
affected  by  notice  of  those  which  touch  and  concern  the  land.  The  covenant 
must  be  one  that  is  capable  of  running  with  the  land  before  the  question 
of  the  purchaser's  conscience  and  the  equity  affecting  it  can  come  into  dis- 
cussion. When,  as  in  Renals  v.  Cowlishaw,  9  Ch.  'D.  125  [1878],  there  is  no 
indication  in  the  original  conveyance,  or  in  the  circumstances  attending  it, 
that  the  burden  of  the  restrictive  covenant  is  imposed  for  the  benefit  of  the 
land  reserved,  or  any  particular  part  of  it,  then  it  becomes  necessary  to 
examine  the  circumstances  under  which  any  part  of  the  land  reserved  is 
sold,  in  order  to  see  whether  a  benefit,  not  originally  annexed  to  it,  has  be- 
come annexed  to  it  on  the  sale,  so  that  the  purchaser  is  deemed  to  have 
bought  it  with  the  land,  and  this  can  hardly  be  the  case  when  the  purchaser 
did  not  know  of  the  existence  of  the  restrictive  covenant.  But  when,  as 
here,  it  has  been  once  annexed  to  the  land  reserved,  then  it  is  not  necessary 
to  spell  an  intention  out  of  surrounding  facts,  such  as  the  existence  of  ii 
building  scheme,  statements  of  auctions,  and  such  like  circumstances,  and 
the  presumption  must  be  that  it  passes  on  a  sale  of  that  land,  unless  there 
is  something  to  rebut  it,  and  the  purchaser's  ignorance  of  the  existence  of 
the  covenant  does  not  defeat  the  presumption."  Farwell,  J.,  In  Rogers  v 
Hosegood,  [1900]  2  Ch.  388,  407. 


522  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

enhance  the  value  of  the  lots,  by  rendering  them  quiet  and  desirable 
places  of  abode ;  that  it  was  further  agreed  among  the  heirs,  and  those 
who  represented  such  as  were  not  sui  juris,  that  in  conveying  the  lots 
the  grantees  should  be  laid  under  an  express  obligation  or  duty,  by 
way  of  condition  or  limitation  of  the  use  thereof,  that  "no  other  build- 
ing, except  one  of  brick  or  stone,  of  not  less  than  three  stories  in  height, 
and  for  a  dwelling-house  only,"  should  be  erected  by  them ;  that  the 
deeds  of  all  the  lots  were  made  upon  this  condition,  and  the  same  was 
either  repeated  or  referred  to  in  the  subsequent  conveyances  there- 
of ;  that  lot  No.  2  was  set  to  Charles  Hayward,  one  of  the  heirs,  and, 
being  under  the  control  of  trustees,  was  by  them  conveyed  in  1822, 
upon  condition  "that  no  other  building  shall  be  erected  or  built'  on 
the  lot  except  one  of  brick  or  stone,  not  less  than  three  stories  in 
height,  and  for  a  dwelling-house  only,"  and  the  same  came  by  inter- 
mediate conveyances  to  James  Nightingale,  one  of  the  defendants, 
who  now  owns  the  same;  that  early  in  1862  said  Nightingale  leased 
said  premises,  consisting  of  a  three  story  dwelling-house,  and  con- 
venient and  comfortable  accessory  erections,  to  Frederick  Loeber,  the 
other  defendant ;  that  the  plaintiffs  believe  and  charge  the  fact  to 
be  that  the  said  lease  contains  the  same  condition  above  recited,  but 
they  also  insist  that  said  Loeber  is  bound  by  the  conditions  of  the 
tenure  of  his  lessor,  whether  he  had  actual  knowledge  thereof  or  not ; 
*  *  *  that  Loeber  has  since  used  the  place  as  a  restaurant,  having 
large  numbers  of  noisy  and  boisterous  persons  in  and  about  the  same, 
and  has  thus  rendered  Hayward  Place  almost  unfit  for  quiet  and  com- 
fortable residences;  and  that  the  plaintiff  Parker,  in  behalf  of  him- 
self and  eleven  others  who  were  named,  being  each  the  proprietor  of  a 
lot  on  Hayward  Place,  with  a  dwelling-house  thereon  of  the  descrip- 
tion above  set  forth,  has  brought  this  bill.  The  titles  of  some  of  the 
plaintiffs  were  set  forth  in  detail.  The  prayer  was  for  an  injunction 
against  such  use  of  the  premises,  and  for  other  and  further  relief. 

The  defendants  filed  a  general  demurrer,  and  the  case  was  there- 
upon reserved  for  the  determination  of  the  whole  court. 

BiGELOW,  C.  J.^®  A  court  of  chancer)'-  will  recognize  and  enforce 
agreements  concerning  the  occupation  and  mode  of  use  of  real  estate, 
although  they  are  not  expressed  with  technical  accuracy,  as  exceptions 
or  reservations  out  of  a  grant  not  binding  as  covenants  real  running 
with  the  land.  .  Nor  is  it  at  all  material  that  such  stipulations  should 
be  binding  at  law,  or  that  any  privity  of  estate  should  subsist  betvyeen 
parties  in  order  to  render  them  obligatory,  and  to  warrant  equitable 
relief  in  case  of  their  infraction.  A  covenant,  though  in  gross  at 
law,  may  nevertheless  be  binding  in  equity,  even  to  the  extent  of 
fastening  a  servitude  or  easement  on  real  property,  or  of  securing  to 
the  owner  of  one  parcel  of  land  a  privilege,  or,  as  it  is  sometimes 
called,  "a  right  to  an  amenity''  in  the  use  of  an  adjoining  parcel,  by 

18  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Ch.  5)  '       EQUITABLE    ENFORCEMENT    OF   AGREEMENTS  523 

which  his  own  estate  may  be  enhanced  in  value  or  rendered  more 
agreeable  as  a  place  of  residence.    *    *     * 

This  brings  us  to  a  consideration  of  the  most  important  and  diffi- 
cult question  raised  by  the  demurrer,  which  is,  whether  the  present 
plaintiffs,  or  any  of  them,  set  forth  in  the  bill  any  such  claim  or  title 
as  will  enable  them  to  enforce  this  restriction  on  the  use  and  occupation 
of  the  premises  in  controversy  as  against  tlie  defendants.  A  satisfac- 
tory answer  to  this  inquiry  will,  we  think,  be  found  in  the  fact,  wiiich 
is  sufficiently  apparent  from  the  allegations  in  the  bill,  that  the  pur- 
pose intended  to  be  accomplished  by  the  restrictions  inserted  in  the 
deeds  of  the  estate  now  owned  and  occupied  by  the  defendants  was 
for  the  benefit  and  advantage  of  other  owners  of  lots  situated  on  the 
same  street  or  court.  Indeed  it  could  have  been  designed  for  no  other 
purpose.  If  we  lay  aside  all  the  facts  alleged  in  the  bill  which  rest  in 
parol  .evidence  only,  and  look  exclusively  to  the  history  of  the  title 
as  shown  by  the  deeds,  the  conclusion  is  unavoidable  that  tliQ  orig- 
inal grantors,  in  whom  the  title  to  the  entire  tract  now  owned  by  the 
several  parties  to  this  suit  in  different  parcels  was  vested,  intended, 
by  limiting  the  use  of  the  several  lots  and  prescribing  the  kind  of 
structures  which  are  to  be  erected  by  the  grantees  thereon,  to  estab- 
lish a  permanent  regulation  and  restriction  by  which  to  prevent  each 
parcel  from  being  appropriated  to  a  purpose  which  might  enure  to 
the  injury  of  any  other  parcel,  or  render  it  less  agreeable  as  a  place 
of  residence.  By  excluding  all  erections  for  the  purposes  of  trade, 
and  appropriating  each  lot  to  a  prescribed  use  as  a  dwelling-house, 
the  entire  neighborhood  comprised  within  the  limits  of  the  original 
tract  laid  out  for  a  street  or  court  was  secured  against  annoyances 
arising  from  occupations  which  would  impair  the  value  of  the  several 
lots  as  places  of  residence.  Thus  a  right  or  privilege  or 'amenity  in 
each  lot  was  permanently  secured  to  the  owners  of  all  the  other  lots. 
While  each  was  restrained  in  the  use  of  his  own  estate,  he  had  the 
benefit  of  a  like  restraint  imposed  on  all  the  other  estates.  That  this 
restriction  or  limitation  was  not  imposed  by  the  original  grantors  for 
their  own  benefit  or  advantage,  and  cannot  be  considered  as  personal 
to  them,  is  manifest  from  the  fact  that  they  retained  no  right  or  in- 
terest in  any  of  the  parcels  of  land.  The  whole  tract  was  conveyed  by 
them.  It  does  not  appear  that  they  retained  the  occupancy  or  own- 
ership of  any  of  the  lots  or  of  any  adjoining  estate,  by  means  of 
which  they  could  derive  any  personal  benefit  or  advantage  from  the 
restrictions.  But  even  if  they  had,  it  would  not  change  the  result ;  be- 
cause, by  uniting  in  a  scheme  or  joint  enterprise  for  the  division  of 
the  estate  into  lots  or  parcels  on  a  street  or  court  laid  out  by  them,  and 
annexing  to  the  conveyance  of  each  lot  a  restriction  on  its  use,  by  the 
observance  of  which  each  parcel  would  be  occupied  for  a  similar  pur- 
pose with  every  other,  the  legal  inference  is,  in  the  absence  of  any 
evidence  to  the  contrary,  that  the  intention  was  to  secure  to  each  es- 
tate the  benefit  or  advantage  which  might  arise  from  the  specific  mode 


524  RIGHTS  IN  THE   LAND   OP  ANOTHER  (Part  2 

in  Ayhich  the  adjoining  premises  were  to  be  improved  and  occupied. 
The  effect  of  such  a  restriction,  inserted  in  contemporaneous  convey- 
ances of  the  several  parcels  under  the  circumstances  alleged  in  the 
bill,  was  to  confer  on  each  owner  a  right  or  interest  in  the  nature  of 
a  servitude  in  all  the  lots  situated  on  the  same  street  which  were 
conveyed  subject  to  the  restriction.  Thus  it  entered  into  the  consid- 
eration which  each  purchaser  paid  for  his  land,  either  by  enhancing 
its  price  in  view  of  the  benefit  secured  to  him  in  the  restraint  imposed 
on  adjoining  owners,  or  by  lessening  its  value  in  consequence  of 
the  limitation  affixed  to  its  use.  In  this  view  of  the  case,  it  is  quite 
immaterial  to  determine  the  precise  legal  nature  or  quality  of  the  re- 
striction in  question.  In  strictness,  perhaps,  the  right  or  interest  cre- 
ated by  the  restrictions,  being  a  qualification  of  the  fee,  did  not  pass 
out  of  the  original  grantors,  and  now  remains  vested  in  them  or  their 
heirs.  But  if  so,  they  hold  it  only  as  a  dry  trust,  in  which  they  have 
no  beneficial  use  or  enjoyment,  the  entire  usufruct  being  in  their  gran- 
tees and  their  assigns  now  holding  the  estates,  for  whose  use  and 
benefit  it  was  intended.  Such  being  the  case,  then  the  latter  are  prop- 
er parties  to  enforce  the  restriction ;  and  the  former,  not  having  any 
present  interest  in  it,  need  not  be  parties  to  the  proceeding.  The 
same  result  would  follow,  if  the  restriction  be  construed  as  in  the  na- 
ture of  a  covenant  by  each  grantee  with  the  other  owners  of  estates  on 
the  court,  or  others  holding  under  a  similar  restriction.  In  either  view, 
the  present  plaintiffs,  having  a  common  interest  in  the  subject  matter 
of  the  bill,  and  a  right  to  ask  for  the  same  remedy  against  the  defend- 
ants, are  rightly  joined  as  parties.  Story,  Eq.  PI.  §§  121,  126;  Adair 
v.  New  River  Co.,  11  Ves.  429,  444;  Gray  v.  Chaplin,  2  Sim.  &  Stu. 
267. 

Demurrer  overruled.^* 

leAcc:  Nottingham  Brick  Co.  v.  Butler,  L.  R.  16  Q.  B.  D.  778  (188(5); 
De  Gray  v.  Monmouth  Beach  Club  House,  50  N.  J.  Eq.  329,  24  Atl.  388  (1892) ; 
Tallmadge  v.  East  River  Bank,  26  N.  Y.  105  (1862). 

The  same  principle  was  applied  to  the  relation  of  landlord  and  tenant  in 
Hudson  V.  Cripps,  [1896]  1  Ch.  265  (1895). 

"In  the  present  case,  I  think,  no  one  can  doubt  that  the  object  of  the 
covenants  in  the  deeds  from  Mercein  was  to  secure  all  the  purchasers  of 
lots  in  the  block,  against  an  offensive  use  of  any  other  of  those  lots.  And 
if  lots  No.  12  and  13  had  been  conveyed  to  the  defendants,  or  to  those  un- 
der whom  they  claim,  while  Mercein  was  still  the  owner  of  lot  No,  11,  I  am 
not  sure  that  any  technical  difficulty  would  have  arisen  in  the  maintaining 
an  action  at  law,  upon  the  covenants  of  the  grantees  of  the  two  first  men- 
tioned lots  by  the  complainant  as  the  subsequent  purchaser  of  lot  No.  11, 
and  the  assignee  of  the  covenants  for  an  easement  for  the  benefit  of  that 
lot  But  as  No.  11  was  first  conveyed,  and  the  mutual  covenants  in  the  deed 
refer  to  that  lot  only,  and  not  to  other  lots  which  still  remained  in  the 
hands  of  Mercein,  the  subsequent  purchasers  from  him  of  lots  No.  12  and 
13,  would  have  taken  their  lots  entirely  discharged  of  the  easement  in  favor 
of  No.  11,  had  it  not  been  for  their  covenants  in  their  own  deeds  for  the 
benefit  of  the  "neighboring  inhabitants ;"  that  is,  the  owners  of  other  lots 
in  the  block.  Although  the  complainant  could  not  maintain  a  suit  at  law 
on  that  covenant  in  his  own  name,  and  would,  perhaps,  be  only  entitled  to 
nominal  damages  if  the  suit  was  brought  in  the  name  of  Mercein,  this  court 


Ch.  5)  EQUITABLE    ENFORCEMENT   OF   AGREEMENTS  525 

CLARK  V.  McGEE. 

(Supreme  Court  of  IlUnois,  1896.     159  111.  518,  42  N.  E.  965.) 

This  was  a  bill  in  equity  brought  by  Melville  Clark  in  the  circuit 
court  of  Cook  county  against  John  McGee  to  enjoin  the  erection  of  a 
certain  building,  and  asking  for  a  removal  of  the  building.  Upon  filing 
the  bill,  a  temporary  injunction  v^as  granted.  The  defendant  appear- 
ed and  put  in  an  answer  to  the  original  bill,  and  entered  a  motion  to 
dissolve  the  injunction.  The  court  denied  the  motion.  Thereupon 
McGee  removed  the  building  in  process  of  erection,  and  commenced  the 
erection  of  another  building.  The  complainant  then  filed  a  supplemental 
bill. 

[This  bill  alleged  in  substance:  That  one  Dray  owned  a  tract  of 
land  in  Chicago  extending  from  Seventy-Second  street  to  Seventy- 
Third  street  on  both  sides  of  Rhodes  avenue.  That  he  platted  this 
land  and  divided  it  into  house  lots,  nineteen  on  each  side  of  the  avenue, 
lot  38  being  at  the  southwest  corner  of  Seventy-Second  street  and 
Rhodes  avenue.  This  lot  was  sold  to  one  Taylor,  who  in  turn  con- 
veyed it  to  complainant.]  That  at  the  time  Dray  made  his  said  sub- 
division, and  pursuant  to  a  general  scheme  or  plan  adopted  by  him, 
and  for  the  benefit  of  all  future  owners  of  lots  in  said  subdivision. 
Dray  conveyed  all  lots  in  said  subdivision  subject  to  certain  restrictions 
inserted  by  Dray  in  the  deeds  to  the  different  purchasers  of  lots 
in  said  subdivision.  That  all  of  the  deeds  for  said  lots,  except  possibly 
two  or  three  of  the  lots,  in  said  subdivision,  contained  said  restrictions, 
and  that  the  purchasers  of  the  lots  in  which  said  restrictions  are  not 
stated  in  the  deeds  bought  said  lots  with  actual  notice  of  such  restric- 
tions. That  the  owners  of  the  said  two  or  three  lots  concerning  which 
no  restrictions  are  contained  in  the  deeds  to  them  had  actual  notice 
that  the  lots  so  purchased  by  them  were  subject  to  similar  condi- 
tions and  restrictions,  as  to  the  kind  and  cost  of  buildings,  and  the 
amount  of  frontage  such  buildings  should  occupy,  as  were  'contained 
in  the  deeds  where  such  restrictions  were  mentioned.  That  John  Mc- 
Gee was  the  owner  of  the  north  one-half  of  lot  36,  and  all  of  lot  37, 
in  Dray's  Cottage  Grove  Addition,  which  has  a  frontage  of  45  feet  on 
Rhodes  avenue,  and  is  immediately  south  of  and  adjoining  the  prop- 
erty so  owned  by  complainant,  and  that  McGee  obtained  title  to  lot  37 
and  the  north  one-half  of  lot  36  by  deed  from  Dray  and  wife  dated 
February  15,  1890,  and  recorded  in  recorder's  office  of  said  Cook  coun- 
ty, in  Book  3189,  page  189.  That  the  said  deed  to  McGee  contained 
the  following  expressed  conditions,  which  Ayere  a  part  of  the  consid- 
eration therefor:    "First.  No  house  shall  be  erected  upon  a  less  portion 

can  give  full  effect  to  the  covenant  by  a  suit  in  the  name  of  the  party  for 
whose  benefit  and  protection  the  covenant  was  intended.  See  Bleecker  v. 
Bingham,  3  Paige's  Rep.  240  [1832]."  McCoun,  V.  C,  in  Barrow  v.  Richard, 
8  Paige  (N.  Y.)  351,  359,  35  Am.  Dec.  713  (1840). 


526  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

of  the  aforesaid  premises  than  a  frontage  of  45  feet.  Second.  No 
house  shall  be  erected  upon  said  premises  at  a  less  cost  than  $2,000,  and 
be  built  less  than  25  feet  back  from  the  front  line  of  said  premises." 
That  in  the  conveyance  of  lot  20,  in  said  subdivision,  Dray  inserted  a 
"similar  provision  to  that  in  the  deed  to  McGee,  except  that  it  was 
provided  in  such  deed  that  no  house  should  be  erected  on  said  lot  20 
upon  a  less  portion  of  the  said  premises  than  a  frontage  of  44"^Vioo 
feet.  That  in  the  conveyance  of  lots  21  to  29,  inclusive,  and  lots  31, 
32,  33,  and  34,  similar  restrictions  to  those  contained  in  said  deed  to 
McGee  were  inserted,  except  the  frontage  for  each  house  was  to  be 
30  feet  and  the  cost  of  each  house  not  less  than  $2,000.  And  that 
in  tlie  deed  to  Taylor  from  Dray  and  wife,  from  whom  Taylor  derived 
title,  similar  restrictions  were  made,  except  that  the  house  to  be  erected 
on  such  lot  should  not  be  erected  on  a  less  frontage  than  44  feet,  and 
that  such  house  should  not  cost  less  than  $2,500.  That  said  property 
was  situated  in  a  good  residence  district.  It  was  also  alleged  that  since 
the  filing  of  the  original  bill  McGee  tore  down  the  frame  shanty  erected 
by  him  on  his  property,  and  had  then  in  process  of  erection  a  one- 
story  cottage  having  an  eight-inch  brick  wall,  the  same  being  set  on 
posts  about  two  feet  from  the  ground;  that  said  building  would  not 
cost  when  completed  to  exceed  $700.  That  it  was  being  constructed 
of  cheap  and  inferior  material,  and  is  shabby-looking  in  every  respect, 
and  was  being  erected  by  McGee  with  full  knowledge  on  his  part  that 
the  same  was  contrary  to  and  in  violation  of  the  express  covenants 
contained  in  the  deed  to  him.  The  defendant  to  the  supplemental  bill 
appeared,  and  entered  a  motion  to  dismiss.  The  court,  on  hearing  the 
motion,  allowed  the  motion,  and  dismissed  the  bill. 

Craig,  C.  J.^°  (after  stating  the  facts).  Walter  S.  Dray,  who  owned 
a  tract  of  land  in  Chicago  consisting  of  five  acres,  laid  it  off  into  38 
lots,  19  on  each  side  of  that  part  of  Rhodes  avenue  lying  between  Sev- 
enty-Second and  Seventy-Third  streets.  He  surveyed  and  platted 
the  property.  The  plat  was  acknowledged  as  required  by  law,  and 
recorded  in  the  recorder's  office  of  Cook  county.  The  plat  shows  the 
size  of  the  various  lots,  the  streets  upon  which  they  are  located,  the 
dimensions  and  numbers  of  the  respective  lots ;  but  the  plat  contains 
nothing  showing  or  tending  to  show  an  intention  on  the  part  of  the 
proprietor  of  the  subdivision  to  impose  any  condition  or  restriction 
whatever  upon  purchasers,  in  reference  to  the  mode  or  manner  in 
which  they  should  use,  improve,  or  erect  buildings  on  the  respective 
lots  which  might  be  purchased.  No  deed  executed  by  the  proprietor  of 
the  subdivision  contained  any  covenant  on  his  part  that  in  the  sale  of 
any  of  the  lots  embraced  in  the  subdivision  he  would  impose  any  re- 
striction on  purchasers  in  regard  to  buildings  to  be  erected  by  pur- 
chasers on  the  lots ;  nor  does  it  appear  that  the  proprietor  ever  entered 
into  any  contract  under  which  he  obligated  himself  to  impose  any 

«o  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Ch.  5) 


EQUITABLE    ENFORCEMENT   OF   AGREEMENTS 


527 


restriction  on  purchasers.  As  will  be  seen  from  the  following  plat, 
the  defendant's  premises  adjoin  the  lot  owned  by  the  complainant  on 
the  north.  The  south  one-half  of  lot  36  and  all  of  35  He  directly  south 
of  the  south  line  of  defendant's  lot,  as  indicated  by  the  plat. 

-  I    l_ 


T2d  St. 


II 

INI 

!l     IM 

1 

II 

i 

r 

1       1 

As  has  been  seen,  the  deed  under  which  McGee  obtained  title  to 
the  premises  occupied  by  him  from  Walter  S.  Dray  contained  a  pro- 
vision that  no  house  shall  be  erected  upon  a  less  portion  of  the  prem- 
ises than  a  frontage  of  45  feet.  No  house  shall  be  erected  upon  the 
premises  at  a  less  cost  than  $2,000  and  be  built  less  than  25  feet  back 
from  the  front  line  of  said  premises.  And  the  question  presented  by 
this  record  is  whether  the  adjoining  lot  owner,  Clark,  can  maintain 
a  bill  to  prevent  the  erection  of  a  building  contrary  to  the  provision  of 
the  deed.  We  think  it  well  settled  by  the  authorities  that  where  a 
grantor  of  two  adjoining  lots  conveys  one,  and  incorporates  in  the 
deed  of  the  lot  conveyed  a  covenant  restricting  the  right  of  the  gran- 
tee to  build  in  a  certain  specified  manner,  which  covenant  is  intend- 
ed for  the  benefit  of  the  other  lot  held  by  the  grantor,  a  subsequent 
conveyance  of  the  lot  retained  will  pass  or  transfer  the  covenant  to 
the  grantee  or  grantees  of  such  lot  as  an  easement  for  the  benefit 
of  the  lot,  and  the  grantee  may  enforce  the  covenant  against  the 
owner  of  the  other  lot  in  an  appropriate  action.  Coughlin  v.  Barker, 
46  Mo.  App.  61,  and  cases  there  cited.  Hutchinson  v.  Ulrich,  145 
111.  336,  34  N.  E.  556,  21  L.  R.  A.  391.  The  law  is  also  well  settled, 
"where  a  tract  of  land  is  subdivided  into  lots,  and  these  lots  are  con- 
veyed to  separate  purchasers,  subject  to  conditions  that  are  of  a  nature 
to  operate  as  inducements  to  the  purchase,  and  to  give  to  each  pur- 
chaser the  benefit  of  a  general  plan  of  building  or  occupation,  so  that 
each  shall  have  attached  to  his  own  lot  a  right  in  the  nature  of  an  ease- 
ment or  incorporeal  hereditament  in  the  lots  of  the  others,  a  right 
is  thereby  acquired  by  each  grantee  which  he  may  enforce  against  any 
other  grantee."    Sharp  v.  Ropes,  110  Mass.  385. 

It  is  claimed  in  this  case,  as  we  understand  the  argument,  that  the 


528  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

complainant  is  entitled  to  relief,  on  the  ground  that  Dray,  the  orig- 
inal proprietor  of  the  tract  of  land,  laid  it  off  into  38  lots,  adopted  a 
general  scheme  or  plan  under  which  all  the  lots  conveyed  were  to  be 
subject  to  certain  restrictions,  which  restrictions  were  intended  for  the 
benefit  of  the  several  lot  owners.  We  do  not.  concur  in  this  view. 
There  is  nothing  in  the  record  to  show  that  the  restriction  placed  on  the 
deed  to  the  defendant  was  part  of  a  general  plan  adopted  by  Dray,  the 
proprietor,  for  the  benefit  of  the  lots  embraced  in  his  Cottage  Grove 
Addition  to  Park '  Manor,  i  In  the  conveyance  of  the  lots  by  Walter 
S.  Dray,  no  two  of  the  deeds  executed  by  him  contained  the  same 
restriction.  They  were  similar,  but  not  the  same.  Moreover,  for  two 
or  three  of  the  lots  conveyed  they  contained  no  restrictions  what- 
ever. The  absence  of  the  building  restrictions  from  record  of  the 
deeds  executed  by  Dray,  as  well  as  the  variance  in  the  terms  and 
conditions  of  the  restrictions  embraced  in  the  other  deeds,  destroyed 
the  uniformity  essential  to  establish  a  general  plan.  See  Dana  v.  Went- 
worth.  111  Mass.  293;  Sharp  v.  Ropes,  supra;  Jewell  v.  Lee,  14 
Allen  (Mass.)  145,  92  Am.  Dec.  744;  Badger  v.  Boardman,  16  Gray 
(Mass.)  559,  and  Coughlin  v.  Barker,  supra.     *     *     * 

Had  a  general  plan  or  scheme  been  adopted  in  this  case  by  the 
proprietor  of  the  addition,  and  uniformly  adhered  to  in  the  conveyance 
of  the  lots,  the  complainant  might  be  entitled  to  maintain  a  bill,  but 
such  was  not  the  case.  The  judgment  of  the  circuit  court  will  be 
affirmed. 

Affirmed.*^ 

21  Ace:  Summers  v.  Beeler,  90  Md.  474,  45  Atl.  19,  48  L.  E.  A.  54,  78  Am. 
St.  Rep.  446  (1899) ;  Sliarp  v.  Ropes,  110  Mass.  381  (1872) ;  Equitable  Life 
Assur.  Soc.  of  United  States  v.  Brennan,  148  N.  Y.  661,  43  N.  E.  173  (1896). 

"The  evidence  shows  the  adoption  of  such  general  plan  of  improvement  In 
this  case,  and  that  all  of  the  lands  conveyed  by  the  land  company,  or  by  the 
Coast  Land  Improvement  Company,  its  successors  in  title,  on  Allen  avenue 
(with  one  exception)  have  been  conveyed  with  a  restriction  as  to  the  build- 
ing line  of  not  less  than  40  feet.  On  the  second  block  east  of  the  block  now 
in  question,  lots  Nos.  82  and  83  were  conveyed  by  the  land  company,  with  a 
25-feet  restriction,  instead  of  40  feet;  but  this  was  because  lot  No.  81,  next 
adjoining  these  on  the  east  was  never  owned  by  the  land  company,  and  upon 
this  latter  lot  a  house  had  already  been  built  by  a  prior  owner  up  to  the 
25-feet  line.  This  exception  as  to  Nos.  82  and  83  cannot  be  considered  a 
change  of  the  general  plan  of  the  company.  And  although  different  building 
lines  were  adopted  for  different  avenues,  the  line  adopted  for  each  street  is 
the  general  plan  or  scheme  for  that  .street,  upon  which  purchasers  upon  the 
street  or  avenue  have  a  right  to  rely."  Emery,  V.  C,  in  Morrow  v.  Hassel- 
man,  69  N.  J.  Eq.  612,  614,  61  Atl.  369  (1905).  Ace:  Allen  v.  Detroit,  167 
Mich.  464,  133  N.  W.  317,  36  L.  R.  A.  (N.  S.)  890  (1911). 

"Tlie  deliberate  continued  intention  of  all  parties  from  1860  onwards 
was  that  this  building  scheme  should  continue  in  force  and  be  operative  on 
all  parties.  Then  it  is  said  that  the  whole  scheme  is  inconsistent  and  can- 
not have  been  intended,  because  there  was  power  in  the  vendor  to  deal  with 
property  undisposed  of  without  refei'ence  to  this  deed.  That  is  an  argument 
which  has  not  been  brought  for  the  first  time  here.  So  far  as  I  am  aware  it 
is  an  argiunent  that  has  never  prevailed.  I  do  not  deny  that  the  insertion 
of  such  a  power  is  an  element  to  be  considered,  but  out  of  many  building 
schemes  which  I  have  seen  I  think  I  am  right  in  this  remark,  that  it  is  al- 


Ch.  5)  EQUITABLE    ENFORCEMENT   OF   AGREEMKNTS  529 

WINFIELD  V.  HENNING. 
(Court  of  Chancery  of  New  Jersey,  1S70.     21  N.  J.  Eq.  1S8.) 

The  Chancellor.  The  complainant  owns  a  house  and  lot  on  the 
south  side  of  South  Fifth  street,  formerly  called  also  Gilbert  street,  in 
Jersey  City.  The  defendant  owns  a  house  and  lot  adjoining  it  on  the 
west,  and  on  the  corner  of  South  Fifth  street  and  Coles  street.  These 
lots  are  part  of  a  tract  of  one  hundred  feet  square,  at  the  southeast 
corner  of  Coles  street  and  South  Fifth  street,  which  was  conveyed  by 
the  devisees  of  John  B,  Coles  to  Keeney  and  Wheeler,  on  the  first 
of  May,  1854.  In  the  deed  the  premises  were  designated  by  num- 
bers, as  four  lots  fronting  on  South  Fifth  or  Gilbert  street,  and  the 
deed  contained  this  provision :  "It  being  expressly  understood  and 
agreed  that  tlie  houses  which  may  be  erected  on  Gilbert  street,  shall  be 
set  back  ten  feet  from  the  southerly  line  of  said  street." 

In  May,  1857,  Keeney  conveyed  his  interest  in  this  tract  to  Wheeler, 
who  afterwards  erected  on  it  five  two  story  houses  of  twenty  feet  front 
on  South  Fifth  street,  ten  feet  from  the  south  line  of  the  street.  After 
they  were  built,  in  May,  1858,  he  conveyed  the  house  and  lot  of 
the  complainant  to  a  grantee,  through  whom  the  complainant  derives 
title,  and  one  year  after  this  he  conveyed  the  house  and  lot  of  the 
defendant  to  a  grantee,  through  whom  the  defendant  claims  title. 
The  stipulation  as  to  the  placing  houses  ten  feet  from  the  street,  is 
not  contained  in  any  deed  after  that  to  Keeney  and  Wheeler.     The 

together  exceptional  not  to  see  some  power  reserved  to  the  vendor  to  ab- 
stract certain  property  from  the  scheme.  On  the  face  of  the  scheme,  which 
all  the  parties  were  content  with,  they  were  told  that  they  entered  into  this 
building  scheme  with  the  knowledge  that  the  vendors  might,  if  they  were  so 
advised,  on  the  one  hand  give  consent  to  the  erection  of  a  public-house  next 
door  to  the  man  who  bought  the  lot,  and  on  the  other  hand  release  any  un- 
sold property  from  the  covenants.  I  cannot  see  that  that  has  any  real  im- 
portance in  the  case."  Cozens-Hardy,  M.  R.,  in  Elliston  v.  Reacher,  [1908] 
2  Ch.  665,  672.  See,  also,  Schreiber  v.  Creed,  10  Sim.  9,  33  (1839) ;  Everett 
V.  Remington,  [1892]  3  Ch.  148. 

A.  leased  a  large  tract  of  land  to  the  B.  Company,  a  corporation,  for  99 
years,  renewable  forever ;  to  be  sold  in  building  lots,  the  lessor  reserving 
one  large  lot  for  himself.  It  was  agreed  between  A.  and  the  company,  inter 
alia,  that  no  land  was  to  be  sold  or  leased  without  a  stipulation  that  the 
lessee  should  build  speedily;  that  no  buildings  should  be  erected  unless  the 
designs  were  approved  by  the  directors  of  the  company.  Lots  were  then 
sold  or  leased  by  the  company.  Several  years  later  the  lessor  died  and  the 
company  bought  in  his  lot  and  his  reversionary  interest.  On  a  bill  for  spe- 
cific performance  by  the  company  against  a  defendant  who  had  contracted 
to  purchase  one  of  the  lots,  but  who  refused  upon  the  ground  that  the  com- 
pany could  not  give  a  clear  title,  Held,  the  company  could  give  a  title  free 
from  the  obligation  to  build  speedily,  but  not  from  the  obligation  to  build 
a  structure  whose  design  had  been  approved  by  the  directors,  and  hence 
could  not  compel  the  defendant  to  accept  the  title.  Peabody  Heights  Co. 
of  Baltimore  City  v.  Willson.  82  Md.  186.  .32  Atl.  386,  1077.  30  L.  R.  A.  393 
(189u).  See,  also,  Keates  v.  Lyon,  L.  R.  4  Ch.  App.  218  (1869);  Electric  City 
I>and  &  Improvement  Co.  v.  West  Ridge  Coal  Co.,  187  Pa.  500,  41  Atl.  458 
(1898). 

BiG.RlGHTS — 34 


530  RIGHTS   IN   THE   LAND   OF  ANOTHER  (Part  2 

grantors  in  that  deed  owned  a  large  number  of  lots  in  the  vicinity, 
some  of  which  were  on  the  opposite  side  of  the  street,  and  retained 
them  after  the  deed  to  Keeney  and  Wheeler. 

The  defendant,  in  May,  1870,  commenced  erecting  an  addition  to 
the  dwelling  house  on  his  lot,  which  would  occupy  the  ten  feet  between 
it  and  the  street,  by  which  the  westerly  view  or  prospect  from  the 
front  of  the  complainant's  house  is  cut  off.  The  injunction  restrains  the 
defendant  from  proceeding  with,  or  completing  that  building. 

The  two  questions  in  the  case  are,  whether  the  defendant  is  bound 
by  the  stipulation  or  covenant  in  the  deed  from  the  Coles  family,  and 
if  he  is,  whether  the  complainant  has  any  right  to  compel  its  perform- 
ance. 

The  provision  or  covenant  in  the  deed  is  not  Hke  that  in  Spencer's 
Case,  5  Rep.  16,  as  was.  urged  on  the  argument.  It  does  not  relate  to 
something  collateral  to  the  land,  but  to  the  land  conveyed  itself.  In 
that  case  the  covenant  was  to  erect  a  brick  wall  on  an  adjoining  lot. 
Nor  does  it  relate  to  a  thing  not  in  esse,  as  a  wall  to  be  built;  but  it 
relates  to  the  ten  feet  of  the  tract  next  to  the  street,  and  the  negative 
stipulation  not  to  erect  houses  on  that  is,  in  its  legal  effect,  to  keep 
it  free  from  buildings ;  this  is  the  only  legal  effect  of  the  covenant ; 
it  does  not  oblige  the  grantees  or  their  assigns  to  erect  buildings  at 
that  distance,  or  to  erect  any  houses  at  all. 

The  stipulation  names  no  one  as  bound,  neither  the  grantees,  their 
heirs  or  assigns,  but  it  is  annexed  to  the  land  and  the  grant  of  it,  and 
must  therefore  be  coextensive  with  the  estate  granted,  which  is  to 
them,  their  heirs  and  assigns.  In  a  suit  by  the  grantors  there  would 
be  no  question  but  that  this  stipulation  would  be  enforced  against  any 
owner  of  this  tract,  or  any  part  of  it,  who  derived  his  title  through 
this  deed. 

The  question  whether  the  complainant  is  entitled  to  enforce  this 
stipulation,  is  not  so  clear.  If  any  purchaser  of  the  other  lots  retained 
by  the  Coles  family  at  the  giving  of  this  deed,  and  injured  by  this 
erection,  was  the  complainant,  the  authorities  are  numerous  and  de- 
cided, that  he  would  be  entitled  to  the  benefit  of  this  stipulation.  Tulk 
V.  Moxhay,  11  Beav.  571;  s.  c,  2  Phil.  774;  Barron  v.  Richard,  3 
Edw.  Ch.  (N.  Y.)  96;  Hills  v.  Miller,  3  Paige  (N.  Y.)  254,  24  Am. 
Dec.  218. 

But  in  this  case  both  parties  derive  title  from  the  covenantors,  and 
not  from  the  covenantee,  and  the  question  is,  whether  they  are  bound 
to  each  other  by  the  covenants  which  Wheeler  entered  into  with  the 
Coles  family,  for  the  benefit  of  the  property  which  they  retained.  An 
action  at  law  could  not  be  maintained  by  the  complainant  against  the 
defendant  on  such  covenant.  But  in  equity  their  position  is  differ- 
ent. Both  parties  are  bound  to  the  grantors  in  the  Coles  deed  to  keep 
this  front  free  from  buildings;  each  is  subject  to  the  easement  over 
his  lot,  in  favor  of  those  subsequently  deriving  title  from  Coles,  and 
each  is  equitably  and  justly  entitled  to  the  advantage  which  the  ob- 


Ch.  5)  EQUITABLE   ENFORCEMENT   OF   AGREEMENTS  531 

servance  of  this  stipulation  by  his  neighbor  may  be  to  him.  If  all  were 
relieved  from  the  encumbrance,  none  perhaps  could  complain.  But 
to  be  restrained  from  extending  his  own  building  to  the  street,  and  to 
have  his  neighbor  on  each  side  project  in  front  of  him,  would  be  a 
much  greater  grievance  to  any  of  these  lot  owners,  than  was  contained 
in  the  stipulation  in  the  deed  through  which  he  derived  title ;  and  he 
has  no  power  to  compel  the  grantors  to  enforce  the  covenant.  It 
seems  equitable  that  this  court  should,  at  his  instance,  compel  the  ob- 
servance of  this  covenant.  .  This  view  is  supported  by  the  dictum 
of  Lord  Romilly,  in  a  case  heard  before  him  at  the  Rolls,  in  1866, 
Western  v.  Macdermot,  1  Eq.  Cases  (L.  R.)  507,  and  by  a  decision  of 
the  Supreme  Court  of  Rhode  Island,  Greene  v.  Creighton,  7  R.  I.  1. 

This  easement  was  in  existence  at  the  time  of  the  conveyance  of 
the  complainant's  lot  by  Wheeler,  who  still  retained  the  lot  of  the  de- 
fendant, which  was  the  dominant  tenement ;  and  this  space  being  left 
open  in  compliance  with  a  covenant  or  stipulation  binding  on  both  lots 
it  might  be  held  to  be  an  apparent  and  continuous  easement,  to  which 
the  part  retained  was  thus  made  subject. 

The  motion  to  dissolve  must  be  denied.^^ 


FORMBY  V.  BARKER. 

(Court  of  Appeal,  1903.     [1903]  2  Ch.  539.) 

Appeal  from  a  decision  of  the  Vice  Chancellor  of  the  County  Pala- 
tine of  Lancaster  (Sir  S.  Hall). 

The  action  was  brought  to  restrain  the  defendant  from  commit- 
ting a  breach  of  a  restrictive  covenant  relating  to  land. 

The  plaintiff  was  the  administratrix  with  the  will  annexed  of  R.  H. 
Formby,  the  covenantee,  and  he  by  his  will  gave  and  bequeathed  all 
his  property  to  her.  ^ 

By  a  deed  dated  July  27,  1868,  land,  situated  at  Fornlby  in  the  coun- 
ty of  Lancaster  (including,  some  land  coloured  pink  on  a  plan  drawn 
upon  the  deed),  was  conveyed  by  R.  H.  Formby  and  his  mortgagees 
to  the  Mutual  Land  Company,  Limited,  in  fee  simple. 

The  deed  contained  the  following  covenant  by  the  company,  for 
themselves,  their  successors  and  assigns,  with  R.  H.  Formby,  his 
heirs,  executors,  and  administrators,  "that  they  *  *  *  shall  not 
nor  will  erect,  build,  or  make  on  the  land  coloured  pink  and  fronting 
Raven  Road  any  beerhouse  or  shop  or  any  hotel  of  less  annual  valu'e 
than  £50."    *    *    * 

The  deed  comprised  the  whole  of  the  land  belonging  to  R.  H.  Form- 
by  in  the  neighbourhood. 

22  Contra:  King  v.  Dickson,  L.  R.  40  Ch.  D.  596  (1SS9) ;  Korn  v.  Camp- 
bell, 192  N.  Y.  490,  85  N.  E.  6S7,  37  L.  R.  A.  (N.  S.)  1,  127  Am.  St.  Rep.  925 
(1908). 


532  RIGHTS  IN  THE   LAND   OF  ANOTHER  (Part  2 

This  deed  was  never  executed  by  the  land  company,  but  they  enter- 
ed into  possession  under  the  deed  of  the  land  comprised  in  it. 

The  defendant  was  an  assignee  from  the  land  company  of  part  of 
the  land  coloured  pink  and  abutting  on  Raven  Road.  He  acquired 
the  land  with  notice  of  the  above  covenant. 

R.  H.  Formby  died  on  October  8,  1884,  and  letters  of  administra- 
tion with  the  will  annexed  were,  on  January  30,  1899,  granted  to  Caro- 
line Formby,  his  widow,  the  plaintiff,  to  whom  by  his  will  he  had 
given  all  his  property. 

In  1902  the  defendant  commenced  to  erect  on  part  of  the  land  col- 
oured pink  and  abutting  upon  Raven  Road  two  shops,  and  threatened 
and  intended  to  complete  the  same.  These  shops  were  not  beerhouses 
or  beershops,  but  were  ordinary  shops  unconnected  with  the  sale  of 
beer. 

The  action  was  commenced  on  September  20,  1902,  and  the  plaintiff 
claimed  an  injunction  to  restrain  tlie  defendant  from  erecting,  build- 
ing, or  making  any  shop  upon  the  land  coloured  pink  and  abutting  on 
Raven  Road.     She  claimed  also  damages  and  costs. 

Hall,  V.  C,  held  on  the  construction  of  the  covenant  that  it  applied 
only  to  a  beershop,  and  that  the  erection  of  any  other  shop  would  not 
be  a  breach.  The  Vice-Chancellor  also  held  that,  even  if  there  should 
be  a  breach,  the  plaintiff  could  not  maintain  an  action  in  respect  of 
a  breach  committed  after  the  death  of  the  covenantee. 

The  plaintiff  appealed. 

Vaughan  Williams,  L.  J.,^'  read  the  following  judgment:  The 
plaintiff  sues  in  her  individual  capacity  and  also  as  administratrix  with 
the  will  annexed  of  R.  H.  Formby,  deceased.     *     *     * 

I  think  we  ought  to  read  "shop"  as  meaning  "beershop." 

This  view  really  puts  an  end  to  the  plaintiff's  case.  But,  as  an- 
other defence  was  raised  and  was  discussed  by~the  learned  Vice  Chan- 
cellor, I  think  it  right  to  deal  with  that  point  also. 

The  learned  Vice  Chancellor  expressed  an  opinion  that,  even  if  the 
plaintiff's  construction  of  the  covenant  was  right,  and  there  had  been 
a  breach  of  the  covenant,  nevertheless  the  plaintiff  was  not  entitled 
to  sue — that  is,  was  not  entitled  to  sue  either  as  personal  representa- 
tive of  R.  H.  Formby  or  as  residuary  devisee  under  his  will. 

I  agree  with  the  conclusion  of  the  Vice  Chancellor  that  there  is 
nothing  in  the  point  made  by  the  defendant  of  the  non-execution  of 
the  deed  by  the  company  other  than  this — that  there  is  no  legal  cove- 
nant. I  have  no  doubt  that  the  land  company  took  the  estate  convey- 
ed subject  to  the  condition  contained  in  the  covenant,  and  I  have  no 
doubt  that  Formby  during  his  life  could  have  enforced  that  condition, 
and,  as  I  am  inclined  to  think,  even  by  an  action  for  damages. 

Before  dealing  with  the  question  of  the  plaintiff's  right  to  sue,  I 

28  The  statement  of  facts  is  abridged  and  part  of  opinion  of  Vaughan  Wil- 
liams, L.  J.,  is  omitted. 


Cll.  5)  EQUITABLE    ENFORCEMENT    OF   AGREEMENTS  533 

wish  to  point  out  that  that  which  R.  H.  Formby  conveyed  was  his 
whole  estate,  and  that  he  had  no  contiguous  estate  which  would  be 
benefited  by  the  covenant  in  question.  Moreover,  there  is  in  the  deed 
no  re-entry  clause  under  which  the  vendor  could  go  in  as  of  his  old  es- 
tate, or,  indeed,  as  of  any  estate. 

In  my  judgment  this  covenant  is  a  personal  covenant,  but  I  do  not 
think  that,  having  regard  to  the  opinions  of  the  judges  delivered  in 
the  House  of  Lords  in  Becklam  v.  Drake,  2  H.  L.  C.  579,  the  right  of 
action,  which,  in  my  judgment,  would  have  vested  in  R.  H.  Formby 
on  a  breach  in  his  lifetime,  is  of  such  a  character  that  a  breach  after 
his  death  would  not  give  to  his  personal  representative  a  right  of 
action  against  the  covenantors,  the  land  company. 

The  maxim  "Actio  personalis  moritur  cum  persona"  has  no  ap- 
plication to  any  breaches  of  contract,  except  those  which  constitute  a 
mere  personal  wrong  and,  with  that  exception,  all  rights  of  action  for 
breaches  of  contract  pass  to  the  executors,  and  in  an  action  for  breach 
of  covenant  or  condition  proof  of  damage  is  not  essential,  and,  in  my 
judgment,  there  has  been  in  this  case,  if  the  plaintiff's  construction  of 
the  covenant  is  right,  a  plain  breach  of  the  covenant,  which  breach  is 
not  a  mere  personal  wrong. 

I  make  these  observations  to  dispose  of  the  argument  addressed  to 
us  on  the  maxim  "Actio  personalis  moritur  cum  persona."  But  this 
still  leaves  the  difficulty  that  the  defendant  is  not  a  party  to  the  deed, 
and  that  there  is  plainly  no  covenant  running  with  land  on  which  the 
defendant  could  be  sued  at  law.  It  becomes  necessary,  therefore,  to 
see  whether  an  action  for  an  injunction  can  be  brought,  upon  the 
principle  established  by  the  judgment  of  Lord  Cottenham,  L.  C,  in 
Tulk  v.  Moxhay,  2  Ph.  774.  Now  in  the  marginal  note  of  that  case  it 
is  said :  "A  covenant  between  vendor  and  purchaser,  on  the  sale 
of  land,  that  the  purchaser  and  his  assigns  shall  use  or  abstain  from 
using  the  land  in  a  particular  way,  will  be  enforced  in  equity  against 
all  subsequent  purchasers  with  notice,  independently  of  the  question 
whether  it  be  one  which  runs  with  the  land  so  as  to  be  binding  upon 
subsequent  purchasers  at  law."  But  at  the  beginning  of  the  Lord 
Chancellor's  judgment  he  said,  2  Ph.  777:  "That  this  Court  has  ju- 
risdiction to  enforce  a  contract  between  the  owner  of  the  land  and  his 
neighbour  purchasing  a  part  of  it,  that  the  latter  shall  either  use  or 
abstain  from  using  the  land  purchased  in  a  particular  way  is  what  I 
never  knew  disputed."  These  words  do  not  cover  the  present  case, 
because  the  land  company  did  not  purchase  a  part  only  of  the  vendor's 
land,  but  the  whole  of  it.  It  becomes  necessary,  therefore,  to  ascer- 
tain whether  the  principle  of  Tulk  v.  Moxhay,  2  PIi.  774,  applies  to  a 
case  in  which  the  vendor  sells  his  whole  estate.  I  have  not  been  able 
to  find  in  any  case  in  which,  after  the  sale  of  the  whole  of  an  estate 
in  land,  the  benefit  of  a  restrictive  covenant  has  been  enforced  by  in- 
junction against  an  assignee  of  the  purchaser  at  the  instance  of  a  plain- 
tiff having  no  land  retained  by  the  vendor,  although  there  are  cases 


534  RIGHTS  IN  THE   LAND   OF   ANOTHER  (Part  2 

in  vdiich  restrictive  covenants  seem  to  have  been  enforced  at  the 
instance  of  plaintiffs,  other  than  the  vendor,  for  the  benefit  of  whose 
land  it  appears  from  the  terms  of  the  covenant  or  can  be  inferred  from 
surrounding  circumstances,  that  the  covenant  was  intended  to  operate.^ 
In  all  other  cases  the  restrictive  covenant  would  seem  to  be  a  mere 
personal  covenant  collateral  to  the  conveyance.  It  is  a  covenant  which 
cannot  run  with  the  land,  either  at  law  or  in  equity,  and  therefore  the 
.  burden  of  the  covenant  cannot  be  enforced  against  an  assignee  of  the 
purchaser. 

But  it  is  said  that  the  doctrine  of  Tulk  v.  Moxhay,  2  Ph.  774,  is 
independent  of  the  question  whether  there  is  in  law  or  in  equity  a 
covenant  running  with  the  land,  and  that  the  doctrine  is  based  upon  ob- 
ligations on  the  conscience  of  a  person  taking  an  estate  with  notice  of 
a  restrictive  covenant  binding  it.  The  answer,  I  think,  is  to  be  found 
in  a  passage  in  the  judgment  of  Collins,  L.  J.,  in  Rogers  v.  Hosegood, 
[1900]  2  Ch.  388,  407.  He  said:  "These  authorities  establish  the 
proposition  that,  when  the  benefit  has  been  once  clearly  annexed  to 
one  piece  of  land,  it  passes  by  assignment  of  that  land,  and  may  be 
said  to  run  with  it,  in  contemplation  as  well  of  equity  as  of  law,  with- 
out proof  of  special  bargain  or  representation  on  the  assignment.  In 
such  a  case  it  runs,  not  because  the  conscience  of  either  party  is  af- 
fected, but  because  the  purchaser  has  bought  something  which  in- 
hered in  or  was  annexed  to  the  land  bought.  This  is  the  reason  why, 
in  dealing  with  the  burden,  the  purchaser's  conscience  is  not  affected  by 
notice  of  covenants  which  were  part  of  the  original  bargain  on  the 
first  sale,  but  were  merely  personal  and  collateral,  while  it  is  affected 
by  notice  of  those  which  touch  and  concern  the  land.  The  covenant 
must  be  one  that  is  capable  of  running  with  the  land,  before  the  ques- 
tion of  the  purchaser's  conscience  and  the  equity  affecting  it  can  come 
into  discussion." 

It  seems  to  me  that  in  the  passage  I  have  just  read  Collins,  L.  J., 
assumes  that  the  doctrine  of  Tulk  v.  Moxhay,  2  Ph.  774,  will  not  ap- 
ply to  a  contract  which  is  merely  personal  and  collateral.  In  my 
judgment  the  covenant  in  the  present  case  is  merely  personal  and 
collateral;  it  has  not  been  entered  into  for  the  benefit  of  any  land 
of  the  vendor,  or  of  any  land  designated  in  the  conveyance;  it  is  a 
covenant  which,  in  my  judgment,  would  not  pass  to. the  heirs  of  the 
vendor,  notwithstanding  the  words  of  the  covenant  are,  "covenant 
with  the  said  R.  H.  Formby,  his  heirs,  executors,  and  administrators." 
There  is  no  land  designated  to  which  the  word  "heirs"  can  be  applied. 
R.  H.  Formby  could  have  sued  the  purchasers  for  breaches  in  his 
lifetime,  and  I  think  that  his  executrix  could  have  sued  the  purchasers 
for  breaches  after  his  death,  but  I  do  not  think  that  the  executrix  can 
sue  the  assignee  of  the  purchasers.  There  is  no  contractual  privity  and 
no  relation  of  "dominancy"  and  "serviency"  of  land  which  will  en- 
able an  action  to  be  brought  against  a  person  not  a  party  to  the  orig- 


Ch.  5)  EQUITABLE    ENFORCEMENT   OF   AGREEMENTS  535 

inal  contract,  nor  do  I  think  that  the  benefit  of  this  covenant  could  be 
dealt  with  by  a  devise. 

There  is  the  following  passage  in  the  judgment  of  Jessel,  M.  R.,  in 
London  &  South  Western  Ry.  Co.  v.  Gomm  (1882)  20  Ch.  D.  562,  583: 
"The  doctrine  of  Tulk  v.  Moxhay,  2  Ph.  774,  rightly  considered,  ap- 
pears to  me  to  be  either  an  extension  in  equity  of  the  doctrine  of 
Spencer's  Case,  5  Rep.  16a,  to  another  line  of  pases,  or  else  an  exten- 
sion in  equity  of  the  doctrine  of  negative  easements ;  such,  for  in- 
stance, as  a  right  to  the  access  of  light,  which  prevents  the  owner  of 
the  servient  tenement  from  building  so  as  to  obstruct  the  light." 
Again,  Jessel,  M.  R.,  said:  "This  is  an  equitable  doctrine,  establish- 
ing an  exception  to  the  rules  of  common  law  which  did  not  treat  such 
a  covenant  as  running  with  the  land,  and  it  does  not  matter  whether 
it  proceeds  on  analogy  to  a  covenant  running  with  the  land  or  on 
analogy  to  an  easement." 

I  think  that  in  both  these  paragraphs  Jessel,  M.  R.,  whether  describ- 
ing the  doctrine  of  Tulk  v.  Moxhay,  2  Ph.  774,  as  an  extension  of 
Spencer's  Case,  5  Rep.  16a,  or  of  the  equitable  doctrine  of  negative 
easements,  regards  it  as  something  arising  from  the  relation  of  two 
estates  one  to  the  other.    *    *    * 

I  think  that  for  the  reasons  which  I  have  given  the  decision  of  the 
Vice  Chancellor  was  right  on  both  points,  and  that  the  appeal  should 
be  dismissed  with  costs. 

[RoMER  and  Stirling,  L.  JJ.,  delivered  concurring  opinions.]^* 


VAN  SANT  et  al.  v.  ROSE  et  al. 

(Supreme  Court  of  Illinois,  1913.     260  111.  401,  103  N.  E.  194,  49  L.  R.  A. 

[N.   S.]   186.) 

Farmer,  J.^"^  Defendants  in  error  (hereafter  referred  to  as  com- 
plainants) filed  the  bill  in  this^case  to  enjoin  plaintiffs  in  error  (here- 
after called  defendants)  from  erecting  a  flat  building  on  the  premises 
described,  in  violation  of  restrictive  covenants  in  the  deed  from  com- 
plainants to  defendants.     *     *     * 

siAcc:     Dana  v.  Wentworth,  111  Mass.  291    (1S73). 

A.  owned  land  through  which  he  wished  to  lay  out  a  street.  He  applied 
to  the  London  County  Council,  the  plaintiff,  for  its  consent,  under  the  Lon- 
don Building  Act,  to  lay  out  such  street.  This  consent  was  given  in  return 
for  a  covenant  executed  by  A.  for  his  heirs  and  assigns  not  to  build  across 
the  end  of  the  new  street  without  the  consent  of  the  plaintiff,  the  purpose 
being  to  facilitate  an  extension  of  the  street  if  the  plaintiff  should  later  de- 
sire so  to  do.  A.  subsequently  sold  the  land  to  the  defendant,  who  bought 
with  notice  of  the  covenant.  The  defendant  started  to  erect  buildings  across 
the  end  of  the  street  without  the  plaintiff's  consent.  The  plaintiff  owned  no 
neighboring  land  for  the  benefit  of  which  the  covenant  was  imposed.  Held, 
the  plaintiff  is  not  entitled  to  enjoin  the  erection  of  the  building.  London 
County  Council  v.  Allen,  [1914]  3  K.  B.  642. 

Compare  Tx)s  Angeles  Terminal  Land  Co.  v.  Muir,  136  Cal.  36,  6S  Pac.  308 
(1902). 

25  I'art  of  the  opinion  is  omitted. 


536  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

It  appears  from  the  allegations  of  the  bill  that  complainants  were 
seized  in  fee  simple  of  lot  1  and  the  north  43.86  feet  of  lot  2,  in  block 
14,  in  Cochran's  second  addition  to  Edgewater,  Cook  county,  111.,  and 
on  or  about  December  16,  1904,  conveyed  said  premises,  by  deed  bear- 
ing date  September  6,  1901,  to  Frank  A.  Rose;  the  deed  containing 
the  following  restrictive  covenants:  "It  is  hereby  expressly  cove- 
nanted and  agreed  that  neither  said  party  of  the  second  part,  nor  his 
heirs,  executors,  administrators,  or  assigns,  shall  erect  any  fence,  in- 
closure,  or  obstruction  to  view  on  said  lots  within  thirty  (30)  feet 
of  the  front  or  side  street  line  of  said  lots  for  a  period  of  ten  years 
from  the  date  hereof,  and  shall  not  build  any  wall  of  any  building 
erected  on  said  lots  within  said  thirty  (30)  feet  of  the  front  or  side 
street  line  of  said  lots  for  a  period  of  twenty  years  from  the  date  here- 
of, without  the  written  consent  of  said  party  of  the  first  part.  *  *  * 
It  is  hereby  expressly  covenanted  and  agreed  that  neither  said  party 
of  the  second  part,  nor  his  heirs,  executors,  administrators,  or  as- 
signs, shall  build  or  cause  to  be  built  on  said  lots  any  building  known 
as  a  flat  or  tenement  building,  hereby  covenanting  to  erect  thereupon 
only  a  single  private  dweUing  house  (excepting  the  stable  as  aforesaid) 
for  a  period  of  twenty  years  from  this  date."  The  bill  alleged  that 
Frank  A.  Rose,  through  an  intermediary,  has  conveyed  the  premises 
to  his  wife,  Alvida  A.  Rose,  and  that  said  defendants,  Alvida  A,  and 
Frank  A.  Rose,  were  about  to  erect  on  the  premises  a  large  apartment 
house  or  flat  building,  and  place  the  north  wall  thereof  substantially  on 
the  lot  line,  all  in  disregard  of  the  covenants  and  reservations  in  the 
deed  from  the  complainants. 

Defendants  did  not  deny  their  intention  to  violate  the  covenants 
and  restrictions  as  alleged  in  the  bill.    *    *    * 

There  is  no  dispute  that  covenants  of  the  character  here  involved 
are  lawful  and  valid,  and  are  in  the  class  of  covenants  courts  of  eq- 
uity will  enforce  by  enjoining  their  breach.  Nevertheless,  it  is  in- 
sisted that  this  case  affords -no  ground  for  equitable  relief,  because  it 
does  not  appear  from  the  bill  that  complainants  own  any  neighboring 
land  to  be  affected  in  any  way  by  a  breach  of  the  covenants.  Counsel 
on  both  sides  have  filed  voluminous  briefs,  in  which  they  have  cited 
and  extensively  discussed  many  cases  decided  by  the  courts  of  this 
country  and  of  England  having  more  or  less  bearing  upon  this  ques- 
tion. They  are  not  altogether  harmonious,  and  in  most  of  them  the 
precise  question  here  presented  was  not  involved.  In  our  opinion  the 
rule  contended  for  by  defendants  cannot  be  applied  in  this  case.  Com- 
plainants are  the  original  covenantees.  Alvida  A.  Rose  is  not  the  orig- 
inal covenantor,  but  she  received  her  title,  through  an  intermediary, 
from  her  husband.  The  deed  to  her  husband  containing  the  covenants 
was  on  record,  and  she  had  notice  of  them.  She  is  in  no  better  posi- 
tion to  resist  the  enforcement  of  the  covenants  than  her  husband 
would  have  been,  and  is  to  be  treated,  and  will  be  referred  to  here- 
after, the  same  as  if  she  were  the  covenantor.     We  must  assume 


Ch.  5)  EQUITABLE    ENFORCEMENT   OF   AGREEIMENT8  537 

that  the  covenants  formed  a  part  of  the  consideration  for  the  convey- 
ance, and  that  complainants  were  unwiUing  to  part  with  the  land  with- 
out the  restrictions  m  the  deed.  As  absolute  control  over  the  prop- 
erty was  denied  the  purchaser  by  the  restrictions  assented  to,  he  pre- 
sumably paid  less  for  it  than  he  would  otherwise  have  been  required 
to  pay.  At  all  events,  the  restrictions  were  mutually  agreed  to.  They 
are  plain  and  unambiguous,  and  there  is  no  pretense  that  there  was  any 
concealment  of  any  fact  when  they  were  agreed  to.  Can  defendants 
now  violate  or  disregard  the  contract,  on  the  ground  that  its  perform- 
ance will  be  of  no  benefit  to  complainants?    *    *    * 

True,  a  bill  to  enjoin  the  breach  of  restrictive  covenants  cannot  be 
maintained  by  one  having  no  connection  with  or  interest  in  their  en- 
forcement; but  we  cannot  agree  that  complainants  had  no  interest. 
They  were  the  original  covenantees,  and  by  their  conveyance  of  the 
property  reserved  an  interest  in  it.  They  conveyed  the  property  sub- 
ject to  that  interest.  They  had  a  right  to  reserve  such  interest,  and 
this  right  was  not  dependent  upon  the  covenantees  having  other  prop- 
erty in  the  vicinity  that  would  be  affected  by  a  breach  of  the  covenants, 
or  that  they  should  in  any  other  manner  sustain  damages  thereby. 
This  court  has  held,  in  harmony  with  the  prevailing  rule  in  other  ju- 
risdictions, that  the  right  to  enjoin  the  breach  of  restrictive  covenants 
does  not  depend  upon  whether  the  covenantee  will  be  damaged  by 
the  breach ;  but  the  mere  breach  is  sufficient  ground  for  interference 
by  injunction.  Bispham's  Principles  of  Equity  (4th  Ed.)  par.  461  ; 
Consohdated  Coal  Co.  v.  Schmisseur,  135  111.  371,  25  N.  E.  795 ;  Hart- 
man  V.  Wells,  257  111.  167,  100  N.  E.  500,  Ann.  Cas.  1914A,  901.  It 
would  seem  inconsistent,  then,  to  say,  as  the  covenantees  had  no 
other  land  in  the  neighborhood,  they  had  no  interest  in  the  perform- 
ance of  the  covenants.  The  only  purpose  their  having  other  land  in 
the  vicinity  could  serve  would  be  to  show  that  they  would  be  injuri- 
ously affected — that  is,  damaged — by  a  violation  of  the  contract.  But, 
as  their  right  does  not  necessarily  depend  upon  their  being  damaged 
by  the  breach,  it  would  seem  it  would  not  necessarily  depend  upon 
their  owning  other  land  in  the  vicinity.  Bispham,  in  the  paragraph 
above  referred  to,  says  it  is  no  answer  to  an  action  of  this  kind  to  say 
the  breach  will  inflict  no  injury  upon  the  complainant,  or  even  that  it 
will  be  a  positive  benefit.  In  Steward  v.  Winters,  4  Sandf.  Ch.  (N. 
Y.)  587  (a  suit  to  enjoin  the  breach  of  restrictive  covenants  in  a  lease), 
it  was  contended  the  breach  would  cause  no  injury,  and  also  that  the 
plaintiff  had  an  adequate  remedy  at  law  for  damages.  The  court  held 
the  grantor  or  lessor  of  land  had  a  right  to  insist  upon  such  covenants 
as  he  pleased  touching  the  use  and  mode  of  enjoyment  of  the  land, 
"and  is  not  to  be  defeated,  when  the  covenant  is  broken,  by  the  opinion 
of  any  number  of  persons  that  the  breach  occasions  l^im  no  substan- 
tial injury."  That  case  was  cited,  and  the  opinion  quoted  from 
with  approval  in  the  Schmisseur  and  Hartman  Cases,  supra.  Kerr  on 
Injunctions  (4th  Ed.)  p.  370,  says :    "  'If  there  is  a  negative  covenant,' 


538  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

said  Lord  Cairns,  in  Doherty  v.  Alman  (L.),  'the  court  has  no  discre- 
tion to  exercise.  If  parties  for  valuable  consideration,  with  their 
eyes  open,  contract  that  a  particular  thing  shall  not  be  done,  all  that 
a  court  of  equity  has  to  do  is  to  say,  by  way  of  injunction,  that  the 
thing  shall  not  be  done.  In  such  a  case  the  injunction  does  nothing 
more  than  give  the  sanction  of  the  process  of  the  court  to  that  which 
already  is  the  contract  between  the  parties.  It  is  not,  then,  a  question 
of  the  balance  of  convenience  or  inconvenience  or  of  the  amount  of 
damage  or  injury;  it  is  the  specific  performance  by  the  court  of  that 
negative  bargain  which  the  parties  have  made,  with  their  eyes  open, 
between  themselves.' "  *  *  * 
Judgment  affirmed. 


LEWIS  V.  GOLLNER  et  ux. 

CCourt  of  Appeals  of  New  York,  1S91.     129  N.  Y.  227,  29  N.  E.  SI.  26  Am. 

St.  Rep.  516.) 

[One  Gollner  was  a  builder  of  flats.  He  secured  a  contract  for  a 
piece  of  land  in  a  neighborhood  devoted  to  private  residences  and  an- 
nounced his  intention  of  erecting  a  large  flat  building  thereon.  The 
trial  court  found  as  a  fact  that  such  a  building  in  that  locality  would 
cause  injury  and  damage  to  the  other  premises.  Gollner  was  finally 
induced  by  the  plaintiff,  upon  a  consideration  of  $24,500,  which  gave 
him  a  net  profit  of  $6,000,  to  sell  out  his  interest  in  the  land,  and  to 
make  an  oral  contract  "not  to  construct  any  flats  in  the  plaintiff's  im- 
mediate neighborhood  or  to  trouble  him  any  more."  Immediately  after 
selling  out  upon  these  terms  Gollner  secured  a  contract  for  another  lot 
in  the  same  neighborhood  and  began  the  erection  thereon  of  another 
large  flat  building.  Upon  litigation  being  tlireatened,  he  conveyed  to 
his  wife  his  equity  in  the  lot,  worth  $2,000,  and  the  foundations  of 
the  building,  which  had  involved  a  large  expenditure.  The  considera- 
tion for  this  was  certain  equities  owned  by  her  worth  $700.  Gollner 
then,  as  the  agent  and  architect  of  his  wife  nominally  and  in  form,  con- 
tinued tlie  construction  of  the  flat  building.  Mrs.  Gollner  knew  all  the 
facts  and  took  title  for  the  purpose  of  aiding  her  husband  in  his  plan. 
The  plaintiff  brought  suit  against  the  two  Gollners  to  enjoin  the  con- 
struction of  the  flat  buildings.  Judgment  below  was  for  the  defend- 
ants, and  tlie  plaintiff  appeals.] 

Finch,  J.^^  *  *  *  I  think  we  should  first  examine  the  situa- 
tion, as  between  plaintiff  and  Gollner,  upon  the  supposition  that  the 
latter  had  remained  owner  of  tlie  land  and  was  himself  engaged  in 
violating  his  contract,  and  ask  of  ourselves  the  question  whether  in 
such  event  it  would  have  been  possible  for  equity  to  interfere,  or 
whether  the  objections  and  difficulties  suggested  by  die  respondents 
would  have  proved  insuperable.     ♦     ♦     * 

2«  Part  of  tho  opinion  is  omitted. 


Ch.  5)  EQUITABLE    ENFORCEMENT   OF   AGREEMENTS  539 

[The  court  decided  that  Gollner  himself  could  have  been  enjoined 
from  breaking  the  agreement.] 

But  Gollner  did  not  remain  the  owner  of  his  new  purchase,  and  that 
brings  us  to  the  difficulty  which  the  courts  below  deemed  insurmount- 
able, and  which  needs  to  be  thoughtfully  considered.  They  reasoned 
that  the  new  vendee  could  not  be  affected  except  through  or  by  the 
purchase  of  the  land,  and  so  only  when  the  land  carried  with  it  as  an 
inseparable  attachment  the  burden  of  the  contract;  that  when  the 
contract  was  made  there  was  no  land  to  which  it  did  or  could  attach ; 
and  so  the  agreement  remained  wholly  personal  to  Gollner,  and  did  not 
affect  or  bind  his  wife.  I  do  not  see  the  contract  in  that  way.  Gollner 
might  have  fulfilled  it  by  omitting  to  buy  or  lease  any  land  within 
the  prescribed  limits,  but  his  agreement  left  him  at  liberty  to  do  so  or 
not,  as  he  pleased,  but  required  that,  if  he  did  so  purchase  or  lease,  he 
should  not  erect  upon  the  land  so  owned  or  possessed  the  prohibited 
structures.  The  moment  he  bought  or  leased  any  such  land  he  came 
under  an  obligation  not  to  use  it  in  a  particular  way;  the  land  in  his 
hands  necessarily  became  restricted  and  limited  in  the  use  of  which 
it  was  capable ;  and  as  much  so,  though  bought  of  another,  as  if  it  had 
come  from  the  contractor  who  imposed  the  restraint  as  vendor.  I  do 
not  see  why  the  equitable  rights  of  the  plaintiff  did  not  attach  to  the 
land  when  bought,  if  it  came,  as  it  did,  within  the  scope  of  the  con- 
tract. Why  should  it  affect  the  result  that  the  obligation  and  the  land 
ownership  were  not  simultaneous,  or  that  the  latter  came  from  a  vendor 
who  did  not  restrict  when  the  contractor  could  and  did?  In  the  case  of 
a  mortgage  the  lien  rpay  attach  to  and  bind  after-acquired  property, 
or  cover  future  and  later  advances,  as  between  the  parties  themselves, 
and  that  is  permitted  because  they  have  so  agr,eed  and  their  contract 
contemplates  that  precise  result.  In  like  manner  I  think  the  agreement 
under  discussion  was,  in  substance  and  effect,  that  whatever  land 
the  defendant  Gollner  might  thereafter  possess  in  that  immediate  neigh- 
borhood should  be  restricted  in  its  use  by  him,  and  should  not  be  de- 
voted to  the  construction  of  tenements  or  flats.  In  other  words,  when, 
he  bought  the  land  the  plaintiff's  equitable  rights  at  once  atached  to  it, 
and  became  a  burden  upon  it  so  long  as  Gollner  owned  it,  so  that  ap- 
parently the  contract  ceases  to  be  merely  and  purely  personal  because 
it  affects  and  was  intended  to  affect  the  use  and  occupation  of  Gollner's 
after-acquired  land  in  that  neighborhood. 

But,  if  the  contract  remains  technically  a  personal  one,  I  think  the 
reasonable  and  settled  doctrine  is  that  the  contract  equity  is  so  attached 
to  the  use  of  the  land  which  is  its  subject-m.atter  as  to  follow  the  land 
itself  into  the  hands  of  a  purchaser  with  full  knowledge  of  all  the  facts, 
who  buys  with  his  eyes  open  to  the  existing  equity,  and  more  especially 
when  he  buys  for  the  express  purpose  of  defeating  and  evading  that 
equity.  It  has  been  held  that  the  equity  resulting  from  a  valid  agree- 
ment, although  the  latter  was  not  a  covenant  running  with  the  land, 
or  a  legal  exception  or  reservation  out  of  it,  but  stood  solely  upon  the 


540  RIGHTS   IN  THE   LAND   OP  ANOTHER  (Part  2 

ground  of  a  personal  contract  dictating  the  mode  of  user,  would  never- 
theless go  with  the  land  into  the  hands  of  a  purchaser  with  notice,  and 
who  did  not  buy  innocently  or  in  good  faith.  Whitney  v.  Railway 
Co.,  11  Gray  (Mass.)  363.  In  Hodge  v.  Sloan,  107  N.  Y.  250,  17  N.  E. 
335,  1  Am.  St.  Rep.  816,  we  substantially  affirmed  that  doctrine,  hold- 
ing that  a  purchaser  without  restriction  in  his  deed,  but  from  one  who 
was  restricted  by  a  personal  covenant  not  running  with  the  land  or 
binding  his  assigns,  yet  with  notice  of  the  facts,  is  bound  by  the  restric- 
tion in  a  court  of  equity;  Judge  Danforth  describing  tlie  character  of 
the  agreement  thus:  "It  is  restrictive,  not  collateral  to  the  land,  but 
relates  to  its  use." 

It  is  true,  and  should  be  noted,  that  in  these  cases  the  restrictions 
followed  the  line  of  title  and  were  imposed  by  the  original  owners  and 
vendors  of  the  land,  while  here  they  were  not  so  imposed,  but  came 
from  one  never  an  owner  of  the  land,  but  deriving  his  right  from  a 
contract  with  one  who  did  become  such  owner.  But  why  should  that 
difference  change  the  result?  The  original  owner's  right  rests  upon 
one  consideration,  and  that  of  the  stranger  to  the  title  upon  another, 
but  each  one  equally  good  and  worthy  of  equitable  regard.  In  Park- 
er v.  Nightingale,  6  Allen  (Mass.)  344,  it  is  declared  not  to  be  in  the 
least  material  that  the  restrictive  stipulations  should  be  binding  at  law, 
or  that  any  privity  of  estate  should  subsist  between  parties  in  order  to 
render  them  obligatory,  and  to  warrant  equitable  relief  in  case  of  their 
infraction.  I  think  that  doctrine  is  sound  and  just.  The  source  of  the 
restriction  would  seem  to  be  immaterial,  if  itself  binding,  and  found- 
ed upon  sufficient  consideration ;  and  a  breach  is  no  greater  wrong  to 
a  privy  in  estate  than  to  a  stranger  validly  contracting  about  its  use. 
Nor  can  the  vendee  in  bad  faith  stand  upon  such  a  difference.  Equity 
has  no  compassion  for  a  fraud,  and  he  who  buys  in  aid  of  one,  with 
full  knowledge  of  what  is  right,  but  with  purpose  to  defeat  it,  should 
not  escape  the  hand  of  equity  by  a  criticism  upon  the  origin  of  the  re- 
striction violated. 

Ijf  these  views  are  correct  it  will  follow  that  plaintiff  should  have 
been  awarded  the  relief  which  he  sought.  The  judgment  should  be 
reversed,  and  a  new  trial  granted,  costs  to  abide  the  event.  All  concur, 
except  RuGER,  C.  J.,  and  Andrews,  J.,  not  voting.^^ 

27  Compare  Millbourn  v.  Lyons,  [1914]  1  Ch.  D.  34,  [1914]  2  Ch.  D.  231. 

A  person  in  de  facto  occupancy  of  the  premises  with  notice  of  the  cove- 
nants may  be  enjoined  from  a  breach  thereof.  Mander  v.  Falcke,  [1891]  2  Cli. 
554.     See  Seaward  v.  Paterson,  [1897]  1  Ch.  545. 


Ch.  5)  EQUITABLE   ENFORCEMENT   OF   AGREEMENTS  54J 


McCLURE  V.  LEAYCRAFT. 

(Court  of  Appeals  of  New  York,  1905.     1S3  N.  Y.  36,  75  N.  E.  961,  5  Ann. 

Uas.  45.) 

[The  plaintiff  and  the  defendant  were  owners  of  neighboring  lots  of 
land  in  the  city  of  New  York.  Both  derived  title  from  a  common 
source  and  both  were  subject  to  a  covenant  running  until  December 
8,  1911,  forbidding  the  erection  of  apartment  buildings.  The  defend- 
ant started  to  erect  an  apartment  building  upon  his  land  and  the  plain* 
tiff  sought  an  injunction. 

The  trial  court  made  the  following  findings  of  fact:] 

"Tenth.  That  at  the  time  when  the  conveyances  hereinbefore  set 
forth  were  made  and  entered  into,  the  real  property  in  the  vicinity 
of  the  property  hereinbefore  described  was  occupied  exclusively  by 
small  private  dwellings,  and  was  classed  as  a  private  residential  dis- 
trict, and  such  houses  were  built  solely  for  one  family  and  occupied  by 
one  family,  and  there  were  no  places  of  business,  flats,  tenements,  or 
apartment  houses  in  the  immediate  neighborhood  of  the  property  affect- 
ed by  the  said  covenants. 

"Eleventh.  That  since  the  making  of  the  said  covenants,  and  within 
the  period  of  about  10  years  last  past,  great  changes  have  occurred  in 
the  neighborhood  and  in  the  class  of  buildings  erected  upon  the  prop- 
erty in  said  neighborhood,  and  in  the  immediate  vicinity  of  the  prem- 
ises owned  by  the  plaintiff  and  the  defendant,  and  there  has  been 
erected  upon  such  property,  including  the  three  corners  directly  oppo- 
site to  defertdant's  premises,  large  apartment  houses  having  a  great 
many  apartments  therein,  several  on  each  floor  and  several  stories  in 
height,  and  which  are  occupied  on  the  ground  floor  by  places  of  busi- 
ness and  used  for  business  purposes.  Numerous  flats  or  tenement 
houses  have  been  built  on  the  block  fronting  on  145th  street  between 
St.  Nicholas  and  Bradhurst  avenues,  which  is  in  the  vicinity  of  plain- 
tiff's and  defendant's  property.     *     *     * 

"Fourteenth.  That  the  erection  upon  the  said  land  of  the  said 
apartment  house  which  the  defendant  proposes  to  erect  thereon  will 
not  decrease  the  fee  value  of  the  plaintiff's  premises,  or  of  the  land 
and  dwellings  within  the  tract  hereinbefore  described,  but  will  increase 
the  value  thereof,  and  the  use  of  the  same  as  an  apartment  house  will 
not  make  the  neighborhood  undesirable  nor  decrease  the  values  of  the 
adjoining  property. 

"Fifteenth.  That  the  change  which  has  taken  place  in  the  character 
of  the  neighborhood  has  made  the  property,  including  the  tract  herein- 
before described,  especially  the  land  owned  by  the  defendant,  unde- 
sirable for  the  erection  of  a  private  dwelling  thereon. 

"Sixteenth.  That  by  reason  of  the  change  in  the  character  of  the 
neighborhood  and  of  the  immediate  vicinity  of  plaintiff's  property  and 
defendant's  property  the  same  has  been  so  altered  as  to  render  inex- 


542  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

pedient  the  observation  of  the  said  covenants,  and  it  would  be  inequi- 
table to  enforce  the  covenants  hereinbefore  set  forth  against  the  de- 
fendant, as  the  enforcement  of  the  same  would  cause  him  great  dam- 
age and  would  not  benefit  the  owners  of  the  adjoining  property." 

The  complaint  was  dismissed  on  the  merits,  for  the  reason,  among 
others,  "that  the  character  and  condition  of  the  neighborhood  have 
so  changed  since  the  making  of  the  said  agreements  that  it  would  be 
inequitable  to  enforce  a  covenant  prohibiting  the  erection  of  a  struc- 
ture such  as  tlie  defendant  proposes  to  erect,  and  equitable  relief  en- 
joining the  defendant  from  erecting  the  said  structure  should  be 
refused."  Upon  appeal  to  the  Appellate  Division  the  judginent  of 
the  Special  Term  was  reversed,  and  a  new  trial  ordered.  The  defend- 
ant appealed  to  this  court. 

Vann,  J.^^  *  *  *  Assuming  that  the  defendant  was  about  to 
violate  the  covenant,  the  question  is  whether,  upon  the  facts  found  and 
approved  by  the  courts  below  relating  to  the  radical  change  in  the 
situation  of  the  property  affected  by  the  covenant,  a  court  of  equity  was 
bound  to  refuse  equitable  relief  in  the  form  of  an  injunction  and  to 
leave  the  injured  party  to  recover  his  damages  in  an  action  at  law. 
If  the  granting  or  withholding  of  a  permanent  injunction  is  within  the 
absolute  discretion  of  the  Supreme  Court,  the  exercise  of  that  discre- 
tion by  the  Appellate  Division  in  favor  of  the  plaintiff  is  beyond  our 
power  to  review;  but  if  the  facts  found  compel  the  conclusion,  as 
matter  of  law,  that  an  injunction  should  be  refused,  as  inequitable,  the 
order  of  reversal  was  wrong,  and  the  judgment  rendered  by  the  trial 
court  should  be  restored. 

While  a  temporary  injunction  involves  discretion,  a  permanent  in- 
junction does  not,  when  the  facts  conclusively  show  that  it  would  be 
inequitable  and  unjust.  A  court  of  equity  will  not  do  an  inequitable 
thing.  It  is  not  bound  by  the  rigid  rules  of  the  common  law,  but  is 
founded  to  do  justice,  when  the  courts  of  law,  witli  their  less  plastic 
remedies,  are  unable  to  afford  the  exact  relief  which  the  facts  require. 
Its  fundamental  principle,  as  its  name  implies,  is  equity.  It  withholds 
its  remedies  if  the  result  would  be  unjust,  but  freely  grants  them  to 
prevent  injustice  when  the  other  courts  are  helpless.  It  cannot  set 
aside  a  binding  contract ;  but  when  the  effect  would  be  inequitable,  ow- 
ing to  facts  arising  after  the  date  of  the  agreement  and  not  within 
the  contemplation  of  the  parties  at  the  time  it  was  made,  it  refuses 
to  enforce  the  contract  and  remands  the  party  complaining  to  his 
remedy  at  law  through  the  recovery  of  damages. 

These  principles  were  applied  by  this  court  in  an  important  case 
which  we  regard  as  analogous  and  controlling.  Trustees  of  Columbia 
College  v.  Thacher,  87  N.  Y.  311,  41  Am.  Rep.  365.  In  that  case 
adjoining  landowners  in  the  city  of  New  York  had  entered  into  re- 
ciprocal covenants  restricting  the  use  of  their  respective  lands  to  the 

28  Part  of  the  oi)inion  is  omitted. 


Ch.  5)  EQUITABLE"  ENFORCEMENT   OF   AGREEMENTS  543 

sole  purpose  of  a  private  residence  and  expressly  excluding  "any- 
kind  of  manufactory,  trade,  or  business  whatsoever."  After  the  lapse 
of  nearly  20  years  the  defendant  permitted  a  building  upon  his  land, 
which  was  bound  by  the  covenant,  to  be  used  for  the  business  of  a 
tailor,  a  milliner,  an  insurance  agent,  a  dealer  in  newspapers,  and  a 
tobacconist.  After  the  commencement  of  an  action  by  the  other  land- 
owner to  restrain  such  use,  an  elevated  railway  was  built  and  a  station 
located  in  the  street  in  front  of  the  premises  of  both  parties.  It  was 
found  as  a  fact  that  the  "railway  and  station  affect  the  premises  in- 
juriously and  render  them  less  profitable  for  the  purpose  of  a  dwelling 
house,  but  do  not  render  their  use  for  business  purposes  indispensable 
to  their  practicable  and  profitable  use  and  occupation.  The  said  rail- 
way and  station,  however,  do  not  injuriously  affect  all  the  property 
fronting  on  Fiftieth  street  and  included  in  the  said  covenant,  but  only 
a  comparatively  small  part  thereof."  The  trial  court  awarded  a 
permanent  injunction,  and  the  General  Term  affirmed  the  judgment; 
but  the  Court  of  Appeals  reversed  and  dismissed  the  complaint  on  the 
ground  that  a  contingency,  not  within  the  contemplation  of  the  par- 
ties, had  frustrated  the  scheme  devised  by  them  and  rendered  the 
enforcement  of  the  covenant  oppressive  and  inequitable.  This  court 
obviously  held  that  an  injunction,  under  the  circumstances,  was  not 
witliin  the  absolute  discretion  of  the  Supreme  Court;  for  otherwise, 
according  to  its  uniform  rule  of  action,  it  would  not  have  reversed  the 
judgment  or  dismissed  the  complaint. 

The  opinion  of  Judge  Danforth,  concurred  in  by  all  the  members 
of  the  court,  declared  that  there  was  a. clear  breach  of  the  covenant, 
which,  under  ordinary  circumstances,  would  entitle  the  plaintiff  to  an 
injunction;  but,  he  said,  "though  the  contract  was  just  and  fair  when 
made,  the  interference  of  the  court  should  be  denied  if  subsequent 
events  have  made  performance  by  the  defendant  so  onerous  that  its  en- 
forcement would  impose  great  hardship  upon  him  and  cause  little  or 
no  benefit  to  the  plaintiff.  Willard  v.  Tayloe,  8  Wall.  557,  19  L.  Ed. 
501 ;  Thomson  v.  Harcourt,  case  66,  p.  415,  vol.  2,  Brown's  Parlia- 
mentary Reports;  Davis  v.  Hone,  2  Sch.  &  Lef.  340;  Baily  v.  De 
Crespigny,  L.  R.  [4  O.  B.]  180;  Clarke  v.  Rochester,  Lockport  & 
Niagara  Falls  Railroad  Company,  18  Barb.  350." 

After  reviewing  the  'authorities  cited,  the  learned  judge  continued : 
"In  the  case  before  us,  the  plaintiffs  rely  upon  no  circumstance  of 
equity,  but  put  their  claim  to  relief  upon  the  covenant  and  the  viola- 
tion of  its  conditions  by  the  defendant.  They  have  established  by  their 
complaint  and  proof,  a  clear  legal  cause  of  action.  If  damages  have 
been  sustained,  they  must,  in  any  proper  action,  be  allowed.  But, 
on  the  other  hand,  the  defendant  has  exhibited  such  change  in  the  con- 
dition of  the  adjacent  property,  and  its  character  for  use,  as  leaves  no 
ground  for  equitable  interference  if  the  discretion  of  the  court  is  to  be 
governed  by  the  principles  I  have  stated,  or  the  cases  which  those  prin- 


544  EIGHTS  IN  THE   LAND   OF   ANOTHER  (Part  2 

ciples  have  controlled.  *  *  *  The  road  was  authorized  by  the 
Legislature,  and,  by  reason  of  it,  there  has  been  imposed  upon  the 
property  a  condition  of  things  which  frustrates  tlie  scheme  devised  by 
the  parties  and  deprives  the  property  of  the  benefit  which  might  other- 
wise accrue  from  its  observance.  This  new  condition  has  already  affect- 
ed, in  various  ways  and  degrees,  the  uses  of  property  in  its  neighborhood 
and  property  values.  It  has  made  the  defendant's  property  unsuitable 
for  the  use  to  which  by  the  covenant  of  his  grantor  it  was  appropriat- 
ed, and  if,  in  face  -of  its  enactment  and  the  contingencies  flowing  from 
it,  the  covenant  can  stand  anywhere,  it  surely  cannot  in  a  court  of 
equity." 

This  case  was  followed  in  Stokes  v.  Stokes,  155  N.  Y.  581,  590,  50 
N.  E.  342 ;  Amerman  v.  Deane,  132  N.  Y.  355,  359,  30  N.  E.  741,  28 
Am.  St.  Rep.  584;  Conger  v.  N.  Y.,  W.  S.  &  B.  R.  R.  Co.,  120 
N.  Y.  29,  32,  23  N.  E.  983;  Page  v.  Murray,  46  N.  J.  Eq.  325,  331, 
19  Atl.  11.  See,  also,  Jewell  v.  Lee,  96  Mass.  (14  Allen)  145,  92  Am. 
Dec.  744;  Taylor  v.  LongwortH  14  Pet.  172,  174,  10  L.  Ed.  405; 
Duke  of  Bedford  v.  Trustees  British  Museum,  2  My.  &  K.  552 ;  Sayers 
V.  Colly er,  24  L.  R.  (Ch.  Div.)  170. 

So  long  as  the  Columbia  College  Case  stands,  the  judgment  ap- 
pealed from  cannot ;  for  the  same  principle  controls  both.  In  each  the 
changed  condition  was  wholly  owing  to  the  lawful  action  of  third 
parties,  which  made  the  allowance  of  an  injunction  inequitable  and 
oppressive.  Indeed,  an  injunction  in  the  case  before  us  would  be  more 
oppressive  than  in  the  case  cited ;  for  it  is  expressly  found,  and  the 
finding  is  final  here,  that  the  proposed  erection  would  actually  increase 
the  value  of  the  plaintiff's  premises,  while  the  enforcement  of  the 
covenant,  without  benefiting  any  one,  would  cause  great  damage  to 
the  defendant.  It  is  a  reasonable  inference  from  the  evidence  that  the 
rent  roll  of  the  defendant's  land,  with  such  dwelling  houses  on  it  as 
would  rent  to  the  best  advantage,  would  not  exceed  $4,500  a  year, 
while  an  apartment  house  such  as  he  proposes  to  erect  would  rent  for 
over  $40,000  a  year.  Nineteen  of  the  twenty-five  years  which  bound- 
ed the  life  of  the  covenant  in  question  have  passed,  and  the  object  of 
the  parties  in  making  it  has  been  defeated  by  the  unexpected  action  of 
persons  not  under  the  control  of  the  defendant. 

Under  the  circumstances  now  existing  tlie  covenant  is  no  longer 
effective  for  the  purpose  in  view  by  the  parties  when  they  made  it,  and 
the  enforcement  thereof  cannot  restore  the  neighborhood  to  its  former 
condition  by  making  it  desirable  for  private  residences.  If  the  build- 
ing restriction  were  of  substantial  value  to  the  dominant  estate,  a  court 
of  equity  might  enforce  it,  even  if  the  result  would  be  a  serious  injury 
to  the  servient  estate;  but  it  will  not  extend  its  strong  arm  to  harm 
one  party  without  helping  the  other,  for  that  would  be  unjust.  An 
injunction  that  bears  heavily  on  the  defendant  without  benefiting 
the  plaintiff  will  always  be  withheld  as  oppressive.  No  injustice  is 
done,  for  the  damages  sustained  can  be  recovered  in  an  action  at  law, 


Ch.  5)  EQUITABLE   ENFORCEMENT  OF  AGKEEMENT8  545 

and  the  material  change  of  circumstances  so  affects  the  interests  of  the 
parties  as  to  make  tliat  remedy  just  to  both. 

We  think  that  botli  reason  and  authority  require  a  reversal  of  the 
order  of  the  Appellate  Division,  but  exact  justice  calls  for  a  modifica- 
tion of  the  judgment  of  the  Special  Term.  As  that  court  found  tiiat 
the  proposed  erection  would  cause  no  damage  to  the  plaintiff",  its 
judgment  might  be  held  a  bar  to  an  action  at  law,  unless  it  expressly 
appeared  that  it  was  without  prejudice  to  that  remedy  for  the  recovery 
of  all  damages  sustained.  We  therefore  reverse  the  order  appealed 
from,  and  so  modify  tlie  judgment  of  the  Special  Term  as  to  declare 
that  it  is  without  prejudice  to  an  action  at  law,  and,  as  thus  modified, 
we  affirm  it,  without  Costs  in  this  court  or  in  the  Appellate  Division 
to  either  party. 

CuLLEN,  C.  J.,  and  Gray,  BartlEtt,  and  WernSR,  ]].,  concur. 
O'Brikn  and  HAiGiir,  JJ.,  absent. 

Order  reversed,  etc.-® 


LOUD  v.  PENDERGAST. 

(Supreme    Judicial    Court   of   Massachusetts,    1910.    206    Mass.   122,    92    iV. 

E.  40.) 

RuGG,  J.  This  is  a  suit  to  restrain  the  alleged  violation  of  a  build- 
ing restriction.  A  tract  of  land  called  "Shirley  Park"  was  laid  out 
in  1895  with  streets,  and  the  lots  were  sold  subject  to  the  restriction 
imposed  as  a  general  scheme  for  the  common  benefit,  that  "all  buildings 
shall  be  set  back  from  the  street  line  at  least  ten  feet."  The  plaintiff 
and  defendant  each  own  one  of  these  lots,  which  are  adjacent.  Each 
has  erected  a  building  on  her  lot.  A  small  part  of  the  main  body  of 
the  defendant's  house  at  one  corner  and  a  bay  window,  extending  from 
the  ground  through  the  second  story,  and  a  piazza  and  steps  are  with- 
in the  restricted  area.  These  constituted  a  violation  of  the  restriction. 
Reardon  v.  Murphy,  163  Mass.  501,  40  N.  E.  854:  Bagnall  v.  Davies, 
140  Mass.  76,  2  N.  E.  786;  Linzee  v.  Mixer,  101  Mass.  512;  San- 
IxDrn  V.  Rice,  129  Mass.  387;    Payson  v.  Burnham.,  141   Mass.  547, 

6  N.  E.  708. 

\ 

2 9 Ace:  Jaclison  v.  Stevenson,  156  Mass.  496,  31  N.  E.  691,  32  Am.  St.  /'.ep. 
47G   (1S92). 

Compnro  Brown  v.  Iluher.  80  Ohio  St.  183,  88  N.  E.  322.  28  L.  R.  A.  (N.  S.) 
70.5  (3909);  I>andell  v.  Hamilton,  175  Pa.  327,  34  Atl.  663,  34  L.  R.  A.  227 
(1896). 

"A  person  who  Is  entitled  to  the  benefit  of  a  restrictive  covenant  may,  by 
his  cci.duot  or  omissions,  put  himself  in  such  an  altered  relation  to  the  )^r- 
son  bound  by  it,  as  malces  it  manifestly  unjust  for  him  to  asli  a  court  to 
Insist  on  its  enforcement  by  injunction.  •  *  •  In  the  present  case  }ve 
do  not  decide  tliat  a  mere  alteration  in  the  character  of  the  neighborhood 
would  bo  sufficient ;  liecause  there  is  no  evidence  that  such  alteration  was 
caused  by  the  plaintiff."  Bowen,  L.  J.,  in  Sayers  v.  Collyer,  L.  U.  2S  Ch 
D.  103,  lOS  (1884). 
Big. Rights — 35 


546  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

It  is  urged  that  the  plaintiff  is  not  entitled  to  relief  because  she  has 
been  guilty  of  laches,  because  she  has  herself  violated  the  same  re- 
strictions in  such  a  way  that  she  comes  into  court  with  unclean  hands, 
and  because  the  original  scheme  has  been  so  generally  violated  in  the 
neighborhood  as  to  make  it  unconscionable  to  enforce  the  restriction 
against  this  defendant. 

Relief  in  equity  in  cases  of  this  nature  is  granted  only  when  sought 
with  promptness,  and  where  active  diligence  has  been  exercised 
throughout  respecting  the  matter  of  complaint.  Conscience  .requires 
that  one  should  not  stand  by  in  silence,  while  another  makes  consid- 
erable expenditures  in  good  faith  under  an  assumed  right,  and  then 
ask  a  court  to  enforce  compliance  with  the  restrictions  at  great  loss, 
when  seasonable  notice  or  other  appropriate  action  might  have  pre- 
vented the  wrong  complained  of.  Stewart  v.  Finkelstone,  206  Mass. 
28,  92  N.  E.  37,  28  L.  R.  A.  (N.  S.)  634,  138  Am.  St.  Rep.  370,  and 
cases  cited. 

Where  a  plaintiff  has  violated  the  very  restriction  he  seeks  to  en- 
force to  substantially  the  same  extent  and  in  the  same  general  way 
as  has  the  defendant,  and  there  is  no  material  difference  in  kind  or 
degree  between  them,  a  court  of  equity  will  not  ordinarily  interfere. 
Bacon  v.  Sandberg,  179  Mass.  396,  60.  N.  E.  936;  Scollard  v.  Normile, 
181  Mass.  412,  63  N.  E.  941.  Such  a  plaintiff  is  not  in  a  position  just- 
ly to  complain,  for  he  does  not  come  into  court  with  clean  hands  re- 
specting the  precise  subject  as  to  which  he  invokes  relief,  nor  has  he 
complied  with  the  maxim  that  he  who  seeks  equity  must  do  equity. 
Butterick  Publishing  Co.  v.  Fisher,  203  Mass.  122,  89  N.  E.  189,  133 
Am.  St.  Rep.  283.  This  rule  is  applied  in  other  jurisdictions.  Olcott 
V.  Knapp,  96  App.  Div.  281,  89  N.  Y.  Supp.  201 ;  s.  c,  185  N.  Y.  584, 
78  N.  E.  1108;  Landell  v.  Hamilton,  177  Pa.  23,  35  Atl.  242;  Ocean 
City  Ass'n  v.  Headley,  62  N.  J.  Eq.  322,  50  Atl.  78;  Ewertsen  v.  Ger- 
stenberg,  186  111.  344,  57  N.  E.  1051,  51  L.  R.  A.  310;  Brutsche  v. 
Bowers,  122  Iowa,  226,  97  N.  W.  1076.3° 

3  0 A.  laid  out  a  tract  of  land  in  building  lots  and  conveyed  four  adjoining 
lots  to  B.,  with  a  covenant  that  they  should  be  used  only  for  residence  pur- 
poses. B.  sold  to  C,  who  knew  of  the  restriction.  In  sales  then  made  over 
a  period  of  years,  A.  conveyed  several  of  the  other  lots  to  various  purchas- 
ers with  no  restrictions.  C.  started  to  erect  a  business  building  upon  liis 
lots.  A.  still  owned  a  few  lots.  Held,  A.  cannot  enjoin  C.  Duncan  v. 
Central  Pass.  Ry.  Co.,  85  K,y.  525,  4  S.  W.  228  (1887).  Ace:  Jenks  v.  Faw- 
lowski,  98  Mich.  110.  5G  N.  W.  1105,  22  L.  R.  A.  863,  39  Am.  St.  Rep.  522 
(1893).  See  Osborne  v.  Bradley,  [1903]  2  Ch.  446;  Reilly  v.  Otto,  108  Mich. 
330,  66  N.  W.  228  (1896). 

Lots  were  sold  subject  to  a  restriction  that  "no  building  or  structure" 
should  be  placed  on  the  lots  within  13  feet  of  B.  street.  The  plaintiff  and 
the  defendant  had  each  acquired  title  to  one  of  these  lots.  The  defendant 
had  erected  a  small  building  within  13  feet  of  B.  street.  On  bill  by  tlie 
plaintiff  to  enforce  the  restriction  the  court  said :  "Lastly,  it  is  urged  in 
defense  that  the  plaintiffs  cannot  come  into  a  court  of  equity  for  redress, 
because  they  have  infringed  the  restrictions  by  allowing  projections  from 
the  houses  into  the  space  of  13  feet  between  the  houses  and  the  line  of  Bea- 
con street.    These  projections   conVjist   of  bay   windows,   piazzas,   and   steps. 


Ch.  5)  EQUITABLE    ENFORCEMENT   OF   AGREEMENTS  547 

Where  there  has  been  no  uniform  observance  of  the  restrictions  and 
substantially  all  the  landowners  have  so  conducted  themselves  as  to 
indicate  an  abandonment  of  the  right,  which  is  in  the  nature  of  an 
easement,  to  have  the  neighborhood  kept  to  the  standard  established 
by  the  original  plan  and  where  the  enforcement  of  the  restriction 
against  the  defendant  will  not  tend  materially  to  restore  to  the  dis- 
trict the  character  impressed  upon  it  by  the  scheme,  and  the  infraction 
complained  of  does  not  diminish  the  value  of  other  estates,  then  it 
would  be  inequitable  and  oppressive  to  compel  at  great  loss  a  com- 
pliance with  the  restrictions.  Jackson  v.  Stevenson,  156  Mass.  496, 
31  N.  E.  691,  32  Am.  $t.  Rep.  476;  Baptist  Social  Union  v.  Boston 
University,  183  Mass.  202,  66  N.  E.  714."     There  is  added  force 

It  appears  to  be  settled  iu  this  commonwealth  that  a  plaiutiff  is  not  pre- 
vented from  obtaining  relief  by  the  fact  that  he  has  not  objected  to  a  viola- 
tion of  a  restriction  by  some  one  in  the  neighborhood  other  than  the  de- 
fendant. Linzee  v.  Mixer,  101  Mass.  512.  531  [1809] ;  Payson  v.  Burnliam, 
141  Mass.  547,  556.  6  N.  E.  708  [1SS6].  See,  also,  Knight  v.  Simmonds,  [189UJ 
2  Ch.  294  ;  German  v.  Chapman,  7  Ch.  Div.  271,  278  [1877].  When  a  breach  of 
restriction  or  of  a  covenant  has  been  committed  by  the  plaintiff,  the  case 
stands  somewhat  differently.  "Whether  a  court  of  equity  will  or  will  not 
aid  the  plaintiff  in  such  a  case  depends  largely  upon  the  question  whether 
there  has  been  such  a  material  and  substantial  breach  as  will  enable  the 
court  to  say  that  it  ought  not  to  interfere.  Kerr,  Inj.  (3d  Ed.)  431 ;  Western 
V.  Macdermot.  L.  K.  1  Eq.  499  [1866] ;  Id.,  2  Ch.  App.  72  [1806] ;  Jackson  v. 
Winnifrith,  47  Law  T.  (N.  S.)  243  [1882] ;  Chitty  v.  Bray,  48  Law  T.  (N.  S.) 
S60  [1883].  In  the  case  before  us  it  may  be  assumed  that  the  plaintiffs,  by 
their  conduct  in  respect  to  their  own  houses,  could  not  invoke  the  aid  of  a 
court  of  equity  to  prevent  the  defendants  from  erecting  a  piazza,  bay  win- 
dow, or  steps  extending  into  the  restricted  space ;  but  the  building  of  a 
separate  house  in  this  space  is  something  the  plaintiff's  have  not  done,  and, 
as  this  building  violates  the  first  restriction,  we  see  no  reason  why  the  plain- 
tiffs sliould  not  be  allowed  to  enforce  their  rights  in  equity  without  consid- 
ering whether  the  defendants  have  not  also  violated  some  of  the  other  re- 
strictions. Evans  v.  Mary  A.  Riddle  Co.  (N.  J.  Ch.)  43  Atl.  894  [1899]."  La- 
throp,  J.,  in  Bacon  v.  Sandberg,  179  Mass.  396,  399,  60  N.  E.  936  (1901). 

Compare  Curtis  v.  Rubin,  244  111.  88,  91  N.  E.  84,  135  Am.  St.  Rep.  307 
(1910).     See,  also,  Landell  v.  Hamilton,  177  Pa.  23,  35  Atl.  242  (1896). 

8i  Acc. :   Curtis  v.  Rubin,  ante,  p.  547. 

"As  to  the  territory  southwesterly  of  Ninth  street,  which  has  been  de- 
fined as  the  residential  district,  I  entertain  the  view  that  the  six  violations  of 
the  covenant  pointed  out  by  defendant  cannot  be  considered  as  suthcient 
evidence  to  indicate  the  abandonment  of  the  original  plan  in  the  district 
where  nearly  400  buildings  have  been  erected  in  conformity  to  the  plan. 
The  extremely  small  percentage  of  the  breaches  of  the  covenant  which  de- 
fendant has  pointed  out  rather  tends  to  the  establishment  of  the  fact  that 
it  has  been  the  defined  purpose  of  the  property  holders  in  that  district  to 
adhere  to  the  pre.servation  of  the  original  plan  sought  to  be  preserved  by  the 
covenant.  I  think  it  also  clear  that  the  eiiuitable  right  of  complainant  to 
the  enforcement  of  the  covenant  in  question  is  not  impaired  by  isolated 
breaches  of  the  covenant  in  locations  where  such  breaches  can  in  no  way 
be  said  to  affect  the  desirability  of  complainants'  property.  It  is  not  to 
be  expected  that  the  courts  will  be  appealed  to  for  the  preservation  of  the 
genei'al  scheme  in  localities  where  a  complainant  is  without  interest.  It  is 
only  when  the  interest  of  a  property  owner  is  affected  that,  in  my  judgment, 
he  can  he  reasonably  cjiarged  with  the  duty  of  applying  to  the  court  for  the 
l<4-eservation  of  rhe  general  sfhenie."  Learning.  V.  C,  in  Barton  v.  Slifer,  72 
X.  J.  E(i.  812,  S17,  66  Atl.  809  {VMl).  Acc :  Knight  v.  Simmonds,  [1896]  2 
Ch.  294. 


548  RIGHTS  IN  THE   LAXD   OF  ANOTHER  (Part  2 

to  the  argument  drawn  from  these  cases  when  as  in  the  present  case 
under  Rev.  Laws,  c.  134,  §  20,  the  restriction  will  expire  after  30 
years,  about  one-half  of  which  has  already  run. 

The  facts  as  to  which  these  principles  are  to  be  applied  were  found 
by  the  superior  court.  As  the  evidence  upon  which  they  rest  is  not  re- 
ported they  must  be  assumed  to  be  true.  They  are,  in  substance,  as 
follows:  On  many  of  the  lots  in  Shirley  Park  buildings,  completed 
and  occupied  for  several  years  prior  to  the  acts  here  complained  of, 
have  been  erected  within  10  feet  of  the  street  lines  without  objection 
from  the  plaintiff  or  any  one  else.  The  plaintiff  bought  her  lot  in 
1900,  and  in  1903  built  a  one-story  building  flush  with  the  street  line. 
This  building  was  removed  in  1907,  and  in  its  place  a  three-story 
building  was  erected,  the  main  part  of  which  encroached  a  few  inches 
upon  the  prohibited  10  feet  and  bay  windows  on  which  project  into 
it  over  3  feet.  .She  also  erected  a  wooden  signboard  measuring  4 
feet  by  9  feet,  one  end  of  which  is  wfithin  a  foot  of  the  street  line. 
See  Nussey  v.  Provincial  Bill  Posting  Co.,  1909,  1  Ch.  734.  In  De- 
cember, 1908,  the  batten  boards  were  set  for  the  house  upon  the  de- 
fendant's lot,  standing  within  3  feet  of  the  street  line,  and  these 
remained  about  2  months.  On  February  18,  1909,  excavation  of  the 
cellar  began,  and  the  foundation,  including  that  of  the  bay,  was  com- 
pleted March  11th,  and  the  house  was  boarded  in  March  20th,  and 
Work  continued  until  the  9th  of  April  following,  when  the  house 
was  substantially  finished  on  the  outside  with  the  exception  of  paint- 
ing and  a  little  work  on  the  piazza.  On  the  last  date  process  was 
served  in  this  suit.  The  defendant's  house  stands  with  reference  to 
the  restrictions  in  material  respects  the  same  as  the  plaintiff's.  The 
defendant  assumed  that  she  had  a  right  thus  to  build,  relying  upon  the 
position  of  the  plaintiff's  building  and  upon  the  general  disregard  of 
restrictions  by  others.  The  plaintiff  was  in  her  building  every  day 
during  the  progress  of  the  work,  and  although  she  often  saw  the  de- 
fendant and  her  husband,  who  was  her  agent  and  daily  upon  her  prem- 
ises, made  no  protest  to  either  of  them,  and  did  not  consult  counsel 
until  April  6th.  The  erections  complained  of  cause  no  pecuniary  dam- 
age to  the  plaintiff,  and  do  not  diminish  the  market  value  of  her  es- 
tate. The  enforcement  of  the  restriction  against  the  defendant  will 
make  her  house  less  commodious  and  attractive  and  would  cause 
thus  her  substantial  loss.  This  narration  demonstrates  that  taking 
all  the  facts  together  the  plaintiff  has  failed  to  establish  a  right  to 
equitable  relief  under  the  governing  rules  of  law  which  we  have  stated. 
The  decree  dismissing  the -bill  is  to  be  so  modified  as  to  include  the 
costs  of  this  appeal,  and  as  so  modified  is  to  be  affirmed. 

So  ordered. 


Ch.  Q)  KENTS  549 

CHAPTER  VI 
RENTS  * 


SECTION  1.— GENERAL  NATURE  OF  RENTS 


WALKER'S  CASE. 

(Court  of  Queen's  Bench,  1587.    3  Coke,  22a.) 

The  case  was  in  effect:  Walker  leased  certain  lands  to  Harris  for 
years,  the  lessee  assigned  all  his  interest  to  another,  Walker  brought 
an  action  of  debt  against  Harris  for  rent  behind,  after  the  assign- 

1  The  payment  of  rent  was  not  in  its  origin  considered  to  be  the  discharge 
of  a  personal  or  contract  duty  that  the  tenant  owed  the  lord ;  rent  was  re- 
garded as  property  interest  that  the  lord  had  in  the  specified  return;  and 
the  obligation  was  somewhat  metaphorically  stated  as  being  owed  by  the 
land  rather  than  by  the  tenant  as  an  individual.  This  feudal  theory  of 
rent  is  shown  by  the  forms  of  action  that  were  used  to  protect  and  vindi- 
cate the  lord's  right  to  rent.  If  the  tenant  had  a  freehold  interest  in  the 
land  and  refused  to  pay  the  rent  reserved,  the  lord  was  regarded  as  being 
disseised  of  the  rent,  and  his  action  to  regain  the  seisin  of  the  rent  was 
similar  to  that  which  he  would  have  brought  in  order  to  regain  the  seisin 
of  the  land  from  a  person  who  had  wrongfully  ousted  him  therefrom.     • 

If  the  tenant's  estate  in  the  land  was  less  than  freehold,  the  theory  as  to 
the  nature  of  rent  remained  the  same,  although  the  action  which  was  used  to 
enforc-e  the  lord's  right  to  tlie  rent  was  different.  Since  in  these  circum- 
stances the  lord  had  no  seisin  of  the  rent  (see  Prescott  v.  Boucher,  2  B.  & 
Ad.  4S9  [1&'.2]),  a  refusal  by  the  tenant  could  nor  be  a  disseisin,  and  conse- 
quently a  real  action  could  not  be  brought  by  the  lord.  The  proper  form  of 
action  for  the  recovery  of  the  rent  in  this  state  of  facts  was  debt.  The  use 
of  this  action,  however,  shows  that  the  tenant  was  regarded  as  wrongfully 
retaining  something,  1.  e.,  the  rent,  to  the  return  of  which  the  owner  of  the 
reversion  to  which  the  rent  was  incident,  was  properly  entitled.  For  a 
similar  reason  the  action  of  debt  also  lay  against  a  freehold  tenant  after 
the  expiration  of  his  estate. 

Another  method  that  the  lord  had  for  enforcing  the  payment  of  the 
rent  from  his  tenant  was  by  distress.  This  was  the  privilege  that  the  lord 
had,  whenever  the  rent  was  in  arrear,  of  seizing  any  chattels  that  might 
be  found  upon  the  demised  land  and  detaining  them  until  the  rent  was 
paid.  This  privilege  was  not  limited  to  the  chattels  of  the  tenant;, a  fact 
which  also  indicates  that  the  obligation  was  regarded  as  that  of  the  laud. 
This  right  of  distress  was  not  in  its  origin  limited  to  the  enforcement  of  the 
payment  of  rent,  but  was  a  general  method  of  compelling  the  performance 
of  various  feudal  ol)ligations,  although  its  most  common  use  wa§  to  enforce 
the  payment  of  rent.  Except  where  created  by  contract,  however,  the  right 
of  distress  existed  only  in  the  ease  where  a  relation  of  tenure  existed  be- 
tween the  one  levying  the  distress  and  the  one  against  whom  it  was  levied. 

Thus  far  the  rent  discussed  has  been  of  a  kind  that  existed  only  in  the 
case  of  a  tenure  relation ;  it  is  technically  called  a  rent  service.  Kents 
might,  however,  be  created  independent  of  a  tenure.  One  case  of  this  sort 
results  from  Quia  Emptores  (1290),  by  which  tenure  was  abolished  between 
feoffor  and  feoffee  in  a  conveyance  in  fee  simple.  If,  prior  to  the  statute, 
A.,  owning  laud,  conveyed  it  to  B.  in  fee,  there  would  be  a  relation  of  tenure 


550  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

ment,  and  whether  the  action  were  maintainable  or  not,  was  the  ques- 
tion,^    *     *     * 

On  great  deliberation  and  conference  with  others,  it  was  adjudged 
by  Wray,  L.  C.  J.,  Sir  Thomas  Gawdy,  and  the  whole  court  of  King's 
Bench,  that  the  action  would  lie  after  such  assignment. 

And  first  for  the  apprehending  of  the  true  reason  of  this  case,r  and 
of  all  the  other  cases,  which  have  been  urged  on  the  other  side,  (for 
the  law  always,  and  in  all  cases,  is  consonant  to  itself,)  it  is  to  be 
known,  that  as  to  the  matter  now  in  question,  there  are  three  manner 
of  privities,  scil.  privity  in  respect  of  estate  only,  privity  in  respect 
to  contract  only,  and  privity  in  respect  of  estate  and  contract  togeth- 
er: privity  of  estate  only;  as  if  the  lessor  grants  over  his  reversion 
(or  if  the  reversion  escheat)  between  the  grantee  (or  the  brd  by  es- 
cheat) and  the  lessee  is  privity  in  estate  only,  so  between  the  lessor 
and  the  assignee  of  the  lessee,  for  no  contract  was  made  between 
them.  Privity  of  contract  only,  is'  personal  privity,  and  extends  only 
to  the  person  of  the  lessor  and  to  the  person  of  the  lessee,  as  in  the 
case  at  bar,  when  the  lessee  assigned  over  his  interest,  notwithstand- 
ing his  assignment  the  privity  of  contract  remained  between  them,  al- 
though the  privity  of  estate  be  removed  by  the  act  of  the  lessee  him- 
self;   and  the  reason  thereof  is. 

First,  because  the  lessee  himself  shall  not  prevent  by  his  own  act 
such  remedy  which  the  lessor  hath  against  him  by  his  own  contraci:, 
but  when  the  lessor  grants  over  his  reversion,  there,  against  his  own 
grant,  he  cannot  have  a  remedy,  because  he  hath  granted  the  rever- 
sion to  another,  to  which  the  rent  is  incident. 

Secondly,  the  lessee  may  grant  the  term  to  a  poor  man,  who  shall 
not  be  able  to  manure  the  land,  and  who  will,  for  need  or  for  malice, 
suiier  the  land  to  lie  fresh,  and  then  the  lessor  will  be  without  rem- 


between  A.  and  B.  If  a  rent  was  reserved  upon  the  conveyance,  it  would 
be  dependent  upon  the  tenure  and  would  consequently  be  a  rent  service.  If 
such  a  conveyance  was  made  after  Quia  Eraptoves,  there  would  be  no  tenure 
l^etween  A.  and  B.,  and  consequently  the  rent  reserved  would  not  be  a 
rent  service.  Other  cases  of  rent  not  dependent  upon  tenure  are  where  a 
person  owning  land,  grants  a  rent  out  of  it  to  a  third  person,  in  fee,  or  for 
life  or  years ;  or  where  a  person  having  in  land  a  reversion  to  which  a  rent 
.service  is  incident  conveys  the  rent  to  a  third  person,  retaining  the  rever- 
sion.    . 

As  already  stated  the  right  of  distress  was  incident  to  a  tenure  relation. 
Since  in  none  of  these  last  mentioned  cases  was  there  a  tenure  relation  be- 
tween the  owner  of  the  rent  and  the  holder  of  the  land  whence  the  rent  was 
derived,  tli,e  only  method  of  enforcing  his  right  that  the  owner  of  the 
rent  had,  was  by  action.  The  rent  was  consequently  known  as  dry  rent,  or 
rent  sec.  The  parties  might,  however,  by  deed,  create  as  an  incident  to  the 
rent  the  right  to  distrain  for  it  although  there  was  no  tenure.  In  this  case 
the  rent  was  known  as  a  rent  charge. 

See,  in  general,  as  to  the  forms  of  action  for  the  recovery  of  rents,  '1 
Pollock  and  Maitland,  History  of  the  English  Law  (2d  Ed.)  p.  125  and  fol. ; 
10  Harvard  Law  Ileview,  p.  78  and  fol.;  11  Harvard  Law  Review,  1;  13  Law 
Quart.  Rev.  288;  Amer.  Lectures  on  Legal  History,  p.  1G7. 

2  Part  of  the  case  is  omitted. 


Ch.  6)  RENTS  551 

edy  either  by  distress  or  by  action  of  debt,  which  would  be  incon- 
venient, and  in  effect  concerns  every  man ;  (for,  for  most  part,  eveiy 
man  is  a  lessor  or  a  lessee)  and  for  these  two  reasons  all  the  cases  of 
entry  by  wrong  eviction,  suspension  and  apportionment  of  rent  are 
answered:  for  in  such  cases  either  it  is  the  act  of  the  lessor  himself, 
or  the  act  of  a  stranger ;  and  in  none  of  the  said  cases  the  sole  act  of 
the  lessee  himself  shall  prevent  the  lessor  of  his  remedy,  and  intro- 
duce such  inconveniences,  as  hath  been  said. 

The  third  privity  is  of  contract  and  estate  together,  as  between 
the  lessor  and  the  lessee  himself.     *     *     * 

Note,  reader,  so  great  was  the  authority  and  consequence  of  this 
judgment,  that  after  this  time,  not  only  the  point  adjudged  hath  been 
always  affirmed,  but  also  all  the  differences  in  this  case  taken  by  Wray, 
C.  J,,  and  the  court  have  been  adjudged,  as  you  may  learn  by  the  cases 
following.  Hil.  36  Eliz.,  in  the  King's  Bench,  Rot.  420,  between  Un- 
gle  and  Glover  ^  it  was  adjudged,  that  if  the  lessee  for  years  assigns 
over  his  interest,  and  the  lessor  by  deed  indented  and  enrolled  accord- 
ing to  the  statute  bargains  and  sells  the  reversion  to  another,  that  the 
bargainee  shall  not  have  an  action  of  debt  against  the  lessee,  for  there 
is  no  privity  betwixt  them.  But  it  was  unanimously  agreed  by  Pop- 
ham,  Ch.  Justice,  Clench,  Gawdy,  and  Fenner,  Justices,  that  after  the 
assignment  the  lessor  himself  might  have  an  action  of  debt  against 
the  lessee  for  rent  due  after  the  assignment.     *     *     * 

Also  it  was  said,  if  the  lessee  assigns  over  his  term,  the  lessor  may 
charge  the  lessee  or  his  assignee  at  his  election ;  and  therefore  if  the 
lessor  accepts  the  rent  of  the  assignee,  he  hath  determined  his  elec- 
tion, and  shall  not  have  an  action  against  the  lessee  afterwards  for 
rent  due  after  tlie  assignment,*  no  more  than  if  the  lord  once  accepts 
the  rent  of  the  feoffee,  he  shall  not  avow  on  the  feoffor:  and  by  these 
judgments  and  resolutions  you  will  the  better  understand  your  books ; 
between  which  prima  facie  seems  to  be  some  diversity  of  opinions. 
Vide  44  E.  3,  5,  and  44  Ass.  18,  9  H.  6,  52,  by  Paston,  which  agree 
with  the  judgment  of  Sir  Christopher  Wray.  See  8  Eliz.  Dyer,  247, 
and  the  quaere  there  made,  is  now  well  resolved. 

3  Reported  Poph.  55 ;  Cro.  Eliz.  328. 

<Acc.:  Miirsh  v.  Brace,  Cro.  Jac.  334  (1614);  Txjdge  No.  2  v.  White,  HO 
Ohio  St.  569,  27  Am.  Rep.  492  (1876).  Compare  Manley  v.  Dupuy,  2  Whart. 
(Pa.)  162   (1837). 

A.  leased  to  X.  X.  assi|?ned  to  Y.,  who  assigned  to  Z.  Held,  Y.  is  not  lia- 
ble for  rent  accruing  after  his  assignment  to  Z.  Hartraan  v.  Thompson, 
104  Md.  .389,  65  Atl.  117,  118  Am.  St.  Rep.  422,  10  Ann.  Cas.  92  (1906). 

An  assignee  of  part  of  the  premises  is  liable  only  for  a  proportionate 
part  of  the  rent.  Babcock  v.  Scoville,  56  111.  461  (1870) ;  Board  of  St.  Louis 
Public  Schools  v.  Boatmen's  Ins.  &  Trust  Co.,  5  Mo.  App.  91  (1878) ;  Hogg  v. 
Reynolds,  61  Neb.  758.  86  N.  W.  479.  87  Am.  St.  Rep.  522  (1901). 


552  RIGHTS  IN  THE  LAND   OF  ANOTHER  (Part  2 

ST.  4  ANNE  (1705)  c.  16,  §§  9,  10. 

St.  4  Anne,  c.  16,  §  9:  Be  it  further  enacted  by  the  authority 
aforesaid,  that  fr6m  and  after  the  said  first  day  of  Trinity  term  [1706] 
all  grants  or  conveyances  thereafter  to  be  made  by  fine  or  otherwise  of 
any  manors  or  rents  or  of  the  reversion  or  remainder  of  any  messuages 
or  lands  shall  be  good  and  effectual  to  all  intents  and  purposes  without 
any  attornment  of  the  tenants  of  any  such  manors  or  of  the  land  out  of 
which  such  rent  shall  be  issuing  or  of  the  particular  tenants  upon 
whose  particular  estates  any  such  reversions  or  remainders  shall  and 
may  be  expectant  or  depending  as  if  their  attornment  had  been  had  and 
made. 

§  10:  Provided  nevertheless  that  no  such  tenant  shall  be  preju- 
diced or  damaged  by  payment  of  any  rent  to  any  such  grantor 
or  conusor  or  by  breach  of  any  condition  for  nonpayment  of  rent  be- 
fore notice  shall  be  given  to  him  of  such  grant  by  the  conusee  or 
grantee. 


BANK  OF  PENNSYLVANIA  v.  WISE. 

(Supreme   Court  of  Pennsylvania,    1834.    3   Watt?,   394.) 

[Writ  of  Error.] 

Kennedy,  J."*  The  only  question  to  be  decided  in  this  case  is, 
whether  the  purchaser  at  sheriff's  sale  of  the  lessor's  title  and  inter- 
est to  and  in  a  house  and  lot  of  ground,  which  had  been  regularly 
taken  in  execution,  condemned  and  sold  by  the  sheriff,  be  entitled  to 
demand  and  receive  from  the  lessee,  the  tenant  in  possession,  the  whole 
of  $212.50,  being  a  half  year's  rent;  which  became  payable  fourteen 
days  after  the  purchasers  had  paid  the  purchase-money  to  the  sheriff 
and  received  from  him  his  deed,  duly  executed  and  acknowledged,  con- 
summating the  sale. 

In  this  case  the  sheriff,  on  the  1st  day  of  January,  1831,  sold  the 
house  and  lot  to  Thomas  Elder  and  Jacob  M.  Haldeman,  two  of  the 
defendants,  for  $9750;  and  after  having  received  from  them  the 
purchase-money  on  the  18th  day  of  same  month,  executed  and  deliv- 
ered to  them  in  due  form,  a  deed  of  conveyance  for  the  same ;  of 
which  immediate  notice  was  given  by  the  purchasers  to  the  President, 
Directors  and  Company  of  the  Bank  of  Pennsylvania,  who  were  in 
possession  of  the  house  and  lot  under  a  lease  from  George  Fisher, 
the  defendant  in  the  judgment  and  execution  under  which  the  sale 
had  been  made.  The  lease  was  for  a  term  of  five  years,  commencing 
with  the  1st  day  of  August,  1828,  at  a  rent  of  $425  per  annum,  pay- 
able .half  yearly.  On  the  1st  of  February  following  the  delivery  of 
the  deed  by  the  sheriff  to  the  purchasers,  $212.50,  a  half  year's  rent 

»  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Ch.  6)  RENTS  553 

fell  due ;  and  on  the  4th  of  March  ensuing,  they  by  their  bailiff,  John 
Wise,  the  other  defendant,  distrained  for  it;  upon  which  the  writ 
of  replevin  commencing  this  action  was  sued  out  by  the  plaintiffs,  and 
the  property  distrained  on  was  replevied. 

For  the  fourteen  days,  that  is,  the  time  which  elapsed  from  the  de- 
livery of  the  sheriff's  deed  to  the  purchasers,  until  the  1st  day  of  Feb- 
ruary, 1831,  when  the  first  half  year's  rent  became  payable  after  the 
sale,  the  plaintiffs  were  willing  to  pay  the  purchasers  such  proportion 
of  the  rent  as  that  time  bore  to  one  hundred  and  eighty-four  days, 
which  is  the  whole  number  of  days  in  the  half  year,  but  for  the  resi- 
due they  say  that  they  are  bound  to  account  to  the  defendant  in  the 
execution,  as  he  continued  to  be  their  landlord  and  the  owner  of  the 
reversion  to  the  18th  of  January,  1831. 

The  idea,  of  apportioning  the  rent  that  becomes  payable  after  the 
purchaser  of  a  reversionary  interest  in  fee  at  a  sheriff's  sale  has 
paid  the  purchase-money  and  received  his  deed  of  conveyance  for  it, 
between  him  and  the  defendant  in  the  execution  as  whose  estate  it 
was  sold,  is  unknown  to  the  law,  and  cannot  be  reconciled  with  any  of 
its  analogous  and  fixed  principles.     *     *     * 

The  only  reason  of  the  least  plausibility  that  can  be  alleged  for  ap- 
portioning the  rent  according  to  time,  between  the  defendant  in  the 
execution  and  the  purchaser  at  sheriff's  sale  *  *  *  would  be  to 
say,  that  it  did  not  properly  and  truly  form  any  part  of  the  subject- 
matter  or  estate  sold  by  the  sheriff ;  that  the  defendant  in  the  execu- 
tion had  received  no  consideration,  and  the  ^rchaser  had  paid  none 
for  it.  But  by  inquiring  into,  and  ascertaining  what  was  really  sold 
and  bought  at  the  sheriff's  sale,  it  will  be  seen  that  there  is  no  ground 
whatever  for  such  a  suggestion,  and  that  it  is  a  great  misapprehension 
of  the  matter  to  suppose  it ;  for  we  shall  find  that  the  purchaser  at 
sheriff's  sale  not  only  purchased,  but  must  be  considered  as  having  paid 
for,  and  as  being  invested  with,  a  right  to  demand  and  receive  all 
the  rents  which  shall  become  payable,  according  to  the  terms  of  the 
lease,  after  the  time  that  his  title  to  his  purchase  became  perfect,  by 
his  payment  of  the  purchase-money,  and  receipt  of  the  sheriff's  deed. 
A  right  to  demand  and  receive  all  such  rents  formed  the  very  heart 
and  essence  of  his  purchase,  seeing  it  was  merely  a  reversionary  in- 
terest. 

It  will  appear  that  there  is  no  proposition  better  established  in  the 
law,  than,  that  without  an  express  reservation,  an  assignment  or  trans- 
fer of  the  reversion,  where  rent  is  becoming  payable  at  certain  periods 
to  the  reversioner,  carries  with  it  the  right  to  demand  and  receive  the 
rent  which  shall  become  payable  afterwards.     ' 

Littleton,  in  section  two  hundred  and  twenty-eight,  says,  that  by 
a  grant  of  the  reversion  the  rent  passeth ;  and  my  Lord  Coke,  in  his 
commentary  upon  it,  tells  us,  that  "the  reason  thereof  is  because  the 
rent  is  incident  to  the  reversion,  and  passeth  away  by  the  grant  of 


554  RIGHTS   IN   THE   LAND   OF   ANOTHER  •      (Part  2 

the  reversion,  as  with  the  superior,  without  saying  cum  pertinentiis." 
1  Inst.  151b;  Shep.  Touch.  89.  And  in  Co.  Litt.  215b,  it  is  laid 
down  that  "both  assignees  in  deed,  and  assignees  in  law,  shall  have 
the  rent,  because  the  rent,  being  reserved  of  the  inheritance  to^him 
and  his  heirs,  is  incident  to  the  reversion  and  goeth  with  the  same." 
Indeed  Noy  lays  it  down  as  a  maxim,  that  by  a  grant  of  the  reversion 
the  rents  pass.*     Noy's  Maxims,  ch.  21,  Rents,  p.  41.     *     *     * 

The  rent  is  so  closely,  so  inseparably  I  may  say,  connected  with 
the  reversion,  that,  without  some  positive  act  of  the  lessor,  it  is  ever 
considered  as  following  the  reversion  and  belonging  to  it  until  it  has 
become  actually  and  completely  payable.  Hence,  if  the  person  entitled 
to  receive  the  rent  outlives  the  day  on  which  it  becomes  due,  and  then 
dies,  it  will  go  to  his  executor  or  administrator  as  a  part  of  his  person- 
al estate ;  but  if  he  die  on  the  day  preceding  tlie  day  of  payment,  the 
rent  will  go  to  the  heir  as  incident  to  the  reversion,  and  as  part  of  the 
real  estate.  3  Cruise's  Dig.  tit.  28,  Rents,  ch,  1,  sect.  59,  New  York  Ed. 
of  1827.     *     *     * 

It  was  a  great  mistake  in  the  court  [in  West  v.  Sink,  2  Yeates  274] 
to  say  *  *  *  that  rent  vv^hich  had  not  become  payable  was  a 
present  debt  to  be  paid  in  future ;  which  means  a  debt  that  the  party 
is  positively  and  absolutely  bound  to  pay,  arising  upon  a  consideration 
which  is  passed ;  as  in  the  case  of  an  obligation  or  a  bond  given  for 
the  payment  of  a  certain  sum  of  money  at  a  future  day ;  or  a  promise 
made  to  pay  a  certain  sum  of  money  at  a  subsequent  day,  as  the  price 
agreed  to  be  given  for  goods  bought  and  received  by  the  promisor  of 
the  promisee ;  but  if  it  be  a  promise  or  covenant  to  pay  a  certain  sum 
of  money  to  another  at  a  future  day,  as  a  compensation  for  his  build- 
ing in  the  mean  time,  a  house  of  certain  dimensions  for  the  party 
promising  or  covenanting  to  pay,  it  cannot  be  called  debitum  in  pre- 
senti  quamvis  sit  solvendum  in  futuro  because  it  is  manifest  from  the 
very  nature  of  this  last  engagement,  that  no  duty  or  obligation  whatever 
can  exist  or  arise  to  pay  the  money  unless  the  house  shall  be  built, 
which  may  or  may  not  be  done.  See  Co.  Litt.  292b.  So  the  consid- 
eration for  the  payment  of  rent  is  the  enjoyment  of  the  thing  demised 

cAoc:  English  v.  Key,  39  Ala.  113  (1S63) ;  Dixon  v.  Niccolls,  30  111.  37-', 
89  Am.  Dec.  312  (18G6) ;  Allen  v.  Hall,  66  Neb.  84,  92  N.  W.  171  (1902)  ;  Gibbs 
V.  Ross.  39  Tenn.  (2  Head)  437  (1859).  See  Allen  v.  Van  Houton,  19  N.  J. 
Law,  47  (1842). 

A.  leased  premises  to  X.  for  two  years  at  an  annual  rent  of  one  half  the 
wheat  raised  on  the  premises.  After  payment  of  the  first  year's  rent,  A. 
drew  an  order  on  X.  in  favor  of  B.  payable  out  of  the  rent.  This  order  was 
accepted  by  X.  A.'s  reversionary  interest  was  then  bought  at  an  execution 
sale  by  C.  The  second  year's  rent  later  became  due,  and  X.  paid  C  all  of 
it  except  that  covered  by  the  acceptance.  In  an  action  by  B.  against  X. 
upon  the  acceptance,  it  was  stipulated  that  if  all  tiie  second  year's  rent  was 
on  these  facts  due  to  C,  and  that  the  payment  of  the  acceptance  could  not 
be  credited  X.  against  C,  judgment  should  be  rendered  for  X.  Held,  X.  is 
entitled  to  judgment.  Martin  v.  Martin,  7  Md.  368,  61  Am.  Dec.  364  (1855). 
Compare  Dreyfus  v.  Hirt,  82  Cal.  621,  23  Pac.  193  (1890). 


Ch.  6)  RENTS  555 

which  is  executory,  and  therefore  uncertain,  but  must  first  be  complete 
before  any  obligation  or  duty  to  pay  the  rent  can  arise.  Lord  Chief 
Baron  Gilbert,  says  "rent  service  is  something  given  by  way  of  retri- 
bution to  the  lessor  for  the  land^  demised  by  him  to  the  tenant,  and 
consequently,  the  lessor's  title  to  the  rent  is  founded  upon  this,  that 
the  land  demised  is  enjoyed  by  the  tenant  during  the  term  included 
in  the  contract,  for  the  tenant  can  make  no  return  for  a  thing  he  has 
not ;  if  therefore  the  tenant  be  deprived  of  the  thing  letten  the  obliga- 
tion to  pay  the  rent  ceases,  because  such  obligation  had  its  force  only 
from  the  consideration,  which  was  the  enjoyment  of  the  thing  de- 
mised." Gilb.  on  Rents,  145;  Vaughan  v.  Blanchard,  4  Dall.  124, 
1  L.  Ed.  769 ;  2  Roll.  Abr.  tit.  Rent,  O ;  Dyett  v.  Pendleton,  8  Cow. 
(N.  Y.)  727.  Hence  if  the  tenant  or  lessee  shall  be  evicted  from  the 
land  demised  by  the  lessor,  or  by  a  third  person,  under  a  title  para- 
mount to  that  of  the  lessor,  at  any  time  before  the  rent  shall  have 
become  actually  payable,  he  will  thereby  be  discharged  from  the  pay- 
ment of  it  entirely,  and  there  shall  be  no  apportionment  of  it.  In 
Clun's  Case,  10  Co.  128,  it  is  laid  down,  that  "the  rent  reserved  is  to 
be  paid  out  of  the  profits  of  the  land,  and  is  not  due  until  the  profits 
are  taken  by  the  lessee;"  and  for  this  reason  it  was  there  held,  "that 
if  the  land  is  evicted,  or  if  the  lease  determines  before  the  legal  time  of 
payment  no  rent  shall  be  paid ;  for  there  shall  never  be  an  appor- 
tionment in  respect  of  part  of  the  time,  as  there  shall  be  upon  an  evic- 
tion of  part  of  the  land."  So  little  of  the  character  of  a  present  debt 
or  duty  has  rent  w^hich  has  not  become  payable,  that  a  release  of  all 
demands  (whicli  is  perhaps  the  most  comprehensive  term  that  could  be 
used  to  embrace  anything  of  the  kind,  Co,  Litt.  291b),  given  by  the 
lessor  to  the  tenant  does  not  discharge  it.  Collings  v.  Harding,  Cro. 
Eliz.  606 ;  Trevil  v.  Ingram,  2  Mod.  282 ;  Henri  v.  Hanson,  1  Leo. 
99;  Ingram  v.  Bray,  2  Leo.  210;  Stevens  v.  Snowe,  ,2  Salk.  578. 
And  Littleton,  in  section  five  hundred  and  thirteen,  says,  that  a  re- 
lease of  all  actions  by  the  lessor  to  the  lessee  will  be  no  bar  to  an  action 
of  debt  brought  afterwards  for  rent  which  became  payable  subse- 
quently ;  and  the  reason  assigned  therefor  by  Lord  Coke  is,  "because 
it  was  neither  debitum  non  solvendum  at  the  time  of  the  release  made, 
for  it  is  to  be  paid  out  of  the  profits  of  the  land,  and  if  the  land  be 
evicted  from  the  lessee  before  the  rent  became  due,  the  rent  is  avoid- 
ed."   Co.  Litt.  292b. 

Rent  cannot  be  likened  to  interest,  which  is  said  to  be  due  de  die  in 
diem,  because  that  is  allowed  for  the  delay  of  payment  of  the  prin- 
cipal that  is  already  due.  Hay  v.  Palmer,  2  P.  Wms.  502 ;  Banner  v. 
Lowe,  13  Ves.  135.  Under  this  view  of  the  nature  of  rent,  that  by 
the  terms  of  the  lease  has  not  become  payable,  it  is  evident  that  the 
court  in  West  v.  Sink,  mistook  the  meaning  and  import  of  the  term 
"due"  when  applied  to  it,  because  from  the  foregoing  authorities,  it 
appears  that  rent  in  legal  parlance  is  never  considered  to  be  due  until 


556  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

it  has  become  actually  payable.  In  fine  that  the  words  "due"  and  "pay- 
able," when  applied  to  rent  are  convertible  terms ;  and  that  they  are 
so  in  common  acceptation,  and  in  the  general  understanding  of  man- 
kind, will  not  be,  as  I  think  it  never  has  been,  denied.    *     *    * 

I  therefore  consider  the  judgment  of  the  court  below  fully  sus- 
tained by  law,  reason  and  authority. 

Judgment  affirmed. 


ROCKINGHAM  et  al.  v.  PENRICE  et  aU 
(Court  of  Chancery,  1711.     1  P.  Wms.  177.) 

Sir  James  Oxenden  before  marriage,  and  in  consideration  of  £10,- 
000  portion,  settled  an  estate  upon  his  lady  (the  plaintiff  the  Lord 
Rockingham's  sister)  for  her  life  for  her  jointure,  with  a  power  for 
himself  to  make  leases  at  the  usual  rent. 

Accordingly  Sir  James  made  leases  pursuant  to  the  power  of  several 
parts  of  the  land  comprised  in  this  settlement,  reserving  the  rent  at 
Lady  Day  and  Michaelmas,  and  died  upon  Michaelmas  Day  between 
three  and  four  in  the  afternoon,  and  before  sun-set.  And  one  of 
these  several  lessees,  to  whom  the  leases  were  made,  paid  his  rent 
(being  £18)  unto  Sir  James  Oxenden  in  the  morning  of  the  said  Mich- 
aelmas Day;  but  the  other  tenants  had  not  paid  their  rent,  the  ar- 
rears whereof  came  to  about  £500. 

Hereupon  the  sole  question  was,  whether  these  arrears  did  belong 
to  the  defendants,  the  executors  of  Sir  James  Oxenden  the  lessor, 
or  to  the  jointress? 

For  the  former  it  was  insisted,  that  when  Michaelmas  Day  came,  the 
rent  was  due  on  that  day,  and  therefore,  according  to  Clun's  Case,  10 
Co.  127,  b,  if  on  Michaelmas  Day,  being  the  rent  day,  the, tenant  pays 
the  rent  in  the  morning  to  the  lessor,  who  dies  before  noon,  this 
payment,  though  voluntary,  is  a  good  payment  against  all  but  the 
King ;  so  that  it  is  not  material  that  the  payment  was  not  compulsive, 
or  that  there  was  no  remedy  for  it  by  debt  or  distress :  in  regard  it  ap- 
pears by  that  book,  that  the  payment,  though  voluntary,  is  notwith- 
standing good  against  the  heir.  And  the  case  in  1  Saunders,  287,  of 
Baskerville  versus  Mayo,  was  by  the  counsel  denied  to  be  law,  where 
it  is  said  to  be  the  opinion  of  Hale,  C.  J.,  that  if  one  leases  for  years, 
rendering  rent,  and  dies  on  the  rent  day  after  sun-set  and  before  mid- 
night, this  rent  shall  go  to  the  heir,  and  not  to  the  executor,  for  that 
(as  it  is  there  said)  though  a  convenient  time  before  sun-set  is  the 
proper  time  to  demand  the  rent,  yet  it  is  not  due  until  "the  end  of 
the  day,  videlicet,  twelve  of  the  clock  at  night,"  which  they  objected 
was  not  law ;  since  at  furthest,  the  rent  was  due  from  the  tenant  to 
the  lessor  at  sun-set;    for  a  convenient  time  before  sun-set,  for  the 


Ch.  6)  BENTS  557 

telling  the  money,  was  the  time  for  the  landlord  to  demand  his  rent; 
upon  non-payment  of  which,  the  lease  might  be  avoided. 

But  it  would  be  absurd  to  say,  the  lessee  should  forfeit  the  lease  for 
non-payment  of  the  rent,  before  it  was  due;  and  a  case  was  cited 
betwixt  Bellasis  and  Cole,  at  the  assizes  at  Durham  before  Mr.  Jus- 
tice Tracy,  where  one  granted  a  rent-charge  for  life,  payable  at  Lady 
Day  and  Michaelmas ;  the  grantee  died  on  Michaelmas  Day  after  sun- 
set; and  the  question  was,  whether  the  executor  of  the  grantee  should 
have  the  rent?  And  for  that  tlie  grantee  lived  until  after^ sun-set, 
.which  was  the  legal  time  for  demanding  the  rent,  though  he  died  before 
twelve  of  the  clock  at  night,  yet  it  was  held  by  that  judge,  tliat  this 
rent  should  go  to  the  executor.  Besides,  it  was  observed,  that  accord- 
ing to  the  other  construction,  if  the  jointress  in  the  present  case,  should 
live  but  one  half-year  after  the  death  of  the  husband,  she  might  have 
a  whole  year's  rent,  which  would  be  unreasonable. 

But  on  the  other  side  it  was  argued,  and  solemnly  decreed  by  the 
Master  of  the  Rolls,  that  the  lessor,  in  the  principal  case,  dying  before 
sun-set,  and  there  being  no  remedy  for  the  lessor  against  the  lessee, 
before  his  [the  lessor's]  death,  to  compel  the  payment  of  this  half- 
year's  rent;  and  upon  the  authority  of  Clun's  Case,  the  half-year's 
rent  reserved  payable  at  Michaelmas,  should,  upon  the  death  of  the 
lessor  before  sun-set,  go  to  the  jointress,  who  then  had  the  reversion ; 

But  that  as  to  the  £18.  rent  paid  by  one  of  the  tenants  to  the  lessor 
upon  Michaelmas  Day  in  the  morning,  this  was  a  good  payment  as  to 
the  lessee  the  tenant,  and  he  should  not  be  compelled  to  pay  the  same 
over  again ;  but  that  the  executors  of  Sir  James,  that  received  this 
half-year's  rent,  should  pay  and  account  for  the  same  unto  Lady  Ox- 
enden  the  jointress. 

Q.  As  to  the  last  point;  for  if  the  £18.  rent  was  a  good  payment 
at  law,  (as  certainly  it  was,  according  to  Clun's  Case)  why  must  it  not 
be  so  in  equity  ? 

See  the  case  of  Lord  Strafford  versus  Lady  Wentworth,  where  Sir 
Henry  Johnson  tenant  for  life,  remainder  to  his  wife  Lady  Wentworth 
for  life,  made  a  lease  at  will  rendering  rent;  and  died  on  Michaelmas 
Day  betwixt  three  and  four  in  the  afternoon,  and  before  sun-set ;  and 
Lord  Strafiford,  as  administrator  to  Sir  Henry  Johnson  claiming  the 
rent, 

Lord  Chancellor  Macclesfield  held  Lord  Strafford  well  intitled  there- 
to; and  cited  the  above  mentioned  case  of  Cole  versus  Bellasis,  and 
said  there  was  a  diversity  betwixt  a  rent  incident  to  a  reversion  that 
must  go  somewhere,  (if  not  to  the  executor,  then  to  the  heir)  and  where 
the  rent  was  to  go  nowhere,  unless  to  tlie  executor;  in  the  latter 
case,  if  the  lessor  lived  to  the  beginning  of  that  day,  at  which  time,  a 
voluntary  payment  of  the  rent  might  be  made,  this  would  be  sufficient 
to  intitle  the  executor  or  administrator  to  the  rent,  rather  than  that  it 
should  be  lost;   for  it  would  be  strange,  if  the  tenant  should  pay  the 


558  RIGHTS  IN  THE   LAND   OF  ANOTHER  (Part  2 

rent  to  none;  and  as  that  case  was,  the  person  in  remainder  (viz. 
the  jointress)  could  have  no  pretence  to  the  rent,  it  being  a  lease  at  wfill, 
and  consequently  such  as  could  have  no  continuance  with  respect  to 
her/ 


HARMER  V.  BEAN. 

(Nisi  Prius,  1853.    3  C.  &  K.  307.) 

Action  for  the  use  of  a  messuage  of  the  plaintiff.  Plea :  Never  in- , 
debted. 

It  appeared  on  the  part  of  the  plaintiff  that  the  defendant  had  rent- 
ed a  house  of  the  plaintiff,  at  a  rent  of  £20.  a  year,  payable  quarterly, 
and  that  all  the  rent  had  been  paid  up  to  Michaelmas,  1851,  and  that 
after  that  a  sum  of  £2.  had  been  paid  and  i4,  more  recovered  under  a 
distress. 

For  the  defendant  it  was  proposed  to  show  that  the  reversion  of 
this  house  was  not  in  the  plaintiff,  and  that  he  was  not  entitled  to  re- 
ceive the  rent  due  at  and  after'  Michaelmas,  1852 ;  and  that  on  the  10th 
November,  1852,  the  plaintiff  had  obtained  a  judgment  in  the  County 
Court  against  the  defendant  for  £6.  14s.  for  arrears  of  this  rent. 

On  the  part  of  the  defendant  a  lease  by  deed  from  the  plaintiff  to 
Mr.  Frederick  Ford,  of  the  house  in  question  and  other  property,  was 
put  in ;  it  was  dated  on  the  4th  of  August,  1852,  and  was  for  twenty- 
one  years,  commencing  at  Midsummer,  1852.     *     *     * 

Parke,, B.  (in  summing  up).  It  appears  that  all  the  rent  was  paid 
up  to  Michaelmas,  1851,  and  the  plaintiff  is  entitled  to  receive  for  all 
rent  due  after  that  till  Midsummer,  1852;  for  we  find  that  in  August, 
1852,  the  plaintiff  granted  a  lease  under  seal  of  this  property  to  Mr. 
Ford  for  t\venty-one  years,  and  in  consequence  of  this  being  done  the 
reversion  was  transferred  to  Mr.  Ford,  and  the  plaintiff  cannot  recover 
for  any  of  this  rent  due  afterwards.    The  learned  judge  of  the  County 

7A.,  tenant  for  life,  leased  premises  to  X.  for  fifty  years,  rent  payable  on 
the  quarterly  feast  days  or  within  thirteen  weeks  after  each  of  said  feast 
days.  A.  died  after  a  feast  day,  but  within  the  thirteen  weeks.  Held,  there 
can  be  no  recovery  of  the  rent  for  that  quarter.  Clun  v.  Fisher,  Cro.  Jac. 
309  (1612). 

"When  a  tenant  for  life,  who  shall  have  demised  any  lands,  shall  die 
on  or  after  the  day  when  any  rent  became  due  and  payable,  his  executors 
or  administrators  may  i-ecover  from  the  under  tenant,  the  whole  rent  due ; 
if  he  die  before  the  day  when  any  rent  is  to  become  due,  they  may  recover 
the  proportion  of  rent  whiph  accrued  before  his  death."  1  Rev.  St.  N.  Y. 
p.  747,  §  22   (1829). 

A.  owned  land  in  fee,  subject  to  a  lease  expiring  May  1,  1855,  the  rent 
being  payable  quarterly.  He  died  in  1852,  devising  the  land  to  his  wife  for 
life,  with  a  residuary  devise  to  B.  in  fee.  His  wife  married  X.  and  died 
April  5,  1855,  making  X.  her  executor.  X.  collected  the  final  quarter's  rent 
due  May  1,  1855.  B.  brought  action  against  X.  to  recover  the  entire  quar- 
ter's rent  so  collected.  Held,  B.  is  entitled  to  .judgment.  Marshall  v.  Mose 
ly,  21  N.  Y.  280  (1860).     See,  also,  Jeunor  v.  Moigan,  1  P.  Wms.  392  (1718). 


Ch.  6)  RENTS  55U 

Court  thought  that  the  reversion  was  not  transferred  by  the  lease, 
but    he    was    mistaken.^      That    takes    oft"    all    after    Midsummer, 
1852.     *     *     * 
Verdict  for  the  plaintift'  for  fS.lOs. 


DAMREN  V.  AMERICAN  LIGHT  &  POWER  CO. 

(Supreme  Court  of  Maine,  1898.     91  Me.  334,  40  Atl.  63.) 

Haskell,  J."  Assumpsit  for  rent.  The  first  count  declares  for 
rent  from  November  20,  1894,  to  August  8,  1895.  The  case  is  on  re- 
port, to  be  decided  upon  so  much  of  the  evidence  "as  competent  and 
legally  admissible." 

One  Charles  Gay,  being  the  owner  of  a  building  and  water  power 
connected  therewith,  leased  the  same  to  defendant.  Gay  became  an 
insolvent  debtor,  and  on  the  8th  of  August,  1895,  his  assignees  con- 
veyed all  the  right,  title,  and  interest  which  Gay  had  in  the  premis- 
es when  he  became  insolvent  to  the  plaintiff,  including  the  lease,  rent 
being  in  arrear  from  that  day  to  the  day  of  the  conveyance.  There- 
afterwards,  on  the  17th  of  January,  1896,  the  assignees  assigned  such 
rent  to  the  plaintiff. 

Rent  in  arrear  is  a  chose  in  action,  and  does  not  pass  by  a  convey- 
ance of  the  reversion.  Winslow  v.  Rand,  29  Me.  362;  Burden  v, 
Thayer,  3  Mete.  (Mass.>  76,  37  Am.  Dec.  117;  Insurance  Co.  v.  Wil- 
son, 10  Mete.  (Mass.)  126. 

An  assignment  of  rent  reserved  under  a  lease  gives  the  assignee 
an  action  in  his  own  name  for  rent  subsequently  accruing.  Kendall 
V.  Garland,  5  Gush.  (Mass.)  75 ;  Hunt  v.  Thompson,  2  Allen  (Mass.) 
341 ;    Harmon  v.  Flanagan,  123  Mass.  288 ;    Beal  v.  Spring  Co.,  125 

8Acc.:  Horn  v.  Beard,  [1912]  3  K.  B.  181;  McDonald  v.  Hanlon,  79  CaL 
442,  21  Pac.  861  (1889);  Hendrickson  v.  Beesoa,  21  Neb.  61,  31  N.  W.  266 
(1887). 

X.  was  tenant  from  year  to  year  under  A.,  his  tenancy  having  begun  at 
Midsummer.  In  May,  Y.  took  a  parol  lease  from  A.  of  the  same  premises 
for  a  year,  to  begin  at  Midsummer.  Y.  demanded  the  fall  and  winter 
quarter  rents  from  X.,  and  on  his  refusal  to  pay  distrained.  X.  sued  Y. 
for  an  illegal  distraint.  Held.  Y.'s  lease  being  by  parol,  the  distraint  is  il- 
legal. Brawloy  v.  Wade.  McClell.  664  (1824).  See  Bordereaux  v.  Walker, 
85  111.  App.  86  (1899). 

A.  lea.sc'd  land  to  X.,  the  lease  expiring  September  29,  1869.  During  this 
term  A.  executed  an  indenture  of  lease  of  the  same  premises  to  Y.  for  a 
period  of  17  years  from  September  29,  1869.  After  the  execution  of  the  lease 
to  Y.,  X.  refused  to  pay  rent  to  A.  Held,  A.  may  distrain.  Smith  v.  Day, 
2  M.  &  W.  684  (1837) ;  and  if  X.  holds  over  after  the  expiration  of  his  tenn 
A.  may  recover  a  statutory  penalty.  Blatchford  v.  Cole,  5  C.  B.  N.  S.  514 
(1858) ;  or  damages,  Thomas  v.  Wightmau,  129  111.  App.  305  (190U) ;  or 
possession.  Eells  v.  Morse.  208  N.  Y.  103.  101  N.  E.  803  (1913).  But  com- 
pare Pendergast  v.  Young.  21  N.  H.  234  (1850) ;  United  Merchants'  Realty  & 
Improvement  Co.  v.  Roth,  193  N.  Y.  570,  86  N.  E.  544  (1908).  See,  also, 
Prescott  V.  De  Forest,  16  Johns.  (X.  Y.)  159  (1819). 

•  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


560  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

Mass.  157,  28  Am.  Rep.  216.  No  case  can  be  found  where  an  assignee 
of  a  lease  or  of  rent  reserved  has  been  permitted,  at  common  law,  "to 
sue  in  his  own  name  for  rent  in  arrear  at  the  time  of  the  assignment. 

The  conveyance  of  the  reversion  and  of  the  lease  was  August  8, 
1895.  It  passed  the  title  that  day  of  estate  held  by  their  insolvent 
on  the  20th  of  November,  1894.  It  cannot  be  construed  as  a  grant 
or  assignment,  taking  effect  the  previous  November,  when  the  debtor 
was  adjudged  insolvent.  The  part  of  the  grant  referring  to  that  date 
was  mere  description  of  the  estate  conveyed.  The  rent  meantime  had 
accrued  to  the  assignees,  and  payment  to  them  would  have  discharged 
the  rent.  It  had  become  separated  from  the  land,  and  was  a  chose  in 
action  recoverable  only  at  common  law  in  the  name  of  the  assignees. 
Whether  that  rent  be  held  as  assigned  to  the  plaintiff  under  the  con- 
veyance of  August  8th,  or  the  subsequent  assignment  of  it  in  the  fol- 
lowing January,  makes  no  dift'erence,  as  it  was  a  chose  in  action  to 
be  sued  for  in  the  names  of  the  assignees  in  insolvency  only.^** 

Under  Rev.  St.  c.  82,  §  130,  an  assignee  of  choses  in  action,  not 
negotiable,  may  sue  in  his  own  name  to  recover  the  same,  but  "shall 
file  with  his  writ  the  assignment  or  a  copy  thereof."  No  assignment 
was  so  filed  in  this  case,  but  both  the  conveyance  of  August  8th  and 
the  assignment  of  the  following  January,  when  offered  in  evidence, 
were  objected  to,  and  under  the  stipulations  cannot  be  considered  if 
not  legally  admissible.  Tliis  question  has  been  decided  in  Bank  v. 
Gooding,  87  Me.  338,  32  Atl.  967,  where  it  is  squarely  held  that  such 
assignments  not  filed  with  the  writ  are  not  admissible  in  evidence 
against  objection.  The  claim  sued  in  the  first  count  cannot,  there- 
fore, be  recovered  in  this  action. 

The  second  count  declares  for  rent  from  August  8  to  November  20, 
1895.  On  the  former  date  the  lease  had  been  assigned  to  plaintiff,  so 
that  rent  accruing  afterwards  may  be  recovered  by  plaintiff  in  his  own 
name.  The  lease  was  terminated  on  the  20th  of  November,  1895,  by 
plaintiff  taking  possession  for  nonpayment  of  rent.  The  rent  was 
payable  monthly  on  the  1st  day  of  each  month,  so  that  all  plaintiff  can 
recover  in  any  event  is  rent  for  August,  September,  and  October.  The 
November  rent  had  not  accrued,  and  therefore  cannot  be  recovered. 
Nicholson  v.  Munigle,  6  Allen  (Mass.)  215.    *    *    * 

Defendant  defaulted  for  $49.98  and  interest  from  date  of 
writ.    *    *    * 

10  See  Midgley  v.  Lovelace.  Carth.  289  (1693) ;  Thornton  v.  Strauss,  79 
Ala.  164  (1885);  Burden  v.  Thayer,  3  Mete.  (Mass.)  76,  37  Am.  Dec.  117 
(1841) ;  Farmers*  &  Mechanics'  Bank  v.  Ege,  9  Watts  (Pa.)  436,  36  Am.  Dec. 
130  (3840). 


Ch.  G)  BENTS  561 

ARDS  V.  WATKINS. 
(Court  of  Queen's  Bench,  159S,  1599.     Cro.  Eliz.  637,  651.) 

Upon  demurrer  the  case  was,  lessee  for  thirty  years  of  a  parcel  of 
land  called  Shortwood,  lets  it  for  twenty-eight  years,  rendering  £34. 
rent  per  annum ;  and  after  deviseth  £28.  parcel  of  that  rent  to  his 
three  sons,  severally  to  every  of  them  a  third  part.  One  of  them 
brings  debt  for  his  part  of  the  rent:  and,  whether  this  action  lay,  or 
not?  was  the  question. 

Gawdy  and  Fenner  held,  that  the  action  well  lay;  for  there  is  no 
doubt  but  that  rent  may  be  devised,  and  be  divided  from  the  reversion  ; 
for  it  is  not  merely  a  thing  in  action,  but  quasi  an  inheritance,  as 
Knowles'  Case  is.  Dyer,  5b;  and  in  24  Hen.  8  Rysden's  Case,  Dyer, 
4b.  If  lessee  grants  over  all  his  term  in  part  of  the  land,  yet  it  is 
chargeable  in  an  action  with  the  entire  rent ;  for  he  by  his  act  cannot 
apportion  it.  •  And  by  the  grant  of  part,  the  lessee  is  not  compellable 
to  attorn ;  for  then  he  should  be  liable  to  two  actions,  or  two  dis- 
tresses. But  the  devise  is  quasi  an  act  of  law,  which  shall  inure  with- 
out attornment,  and  shall  make  a  sufficient  privity,  and  so  it  may  be 
well  apportioned. by  this  means.    Wherefore,  &c. 

Popham  and  Clench  e  contra.  For  as  the  lessee  by  his  own  act  shall 
not  divide  the  lessor's  contract,  nor  apportion  his  action ;  so  likewise 
the  law  favours  the  lessee,  that  the  act  of  the  lessor  shall  not  charge 
him  with  divers  actions,  or  double  distresses,  but  upon  his  voluntary 
attornment :     and  the  contract  being  entire  cannot  be  apportioned. 

But  Popham  agreed,  that  the  rent  was  well  devisable,  and  by  that 
means  severable  from  the  reversion.  And  although  a  thing  in  action 
cannot  be  transferred  over,  nor  be  devised ;  yet  a  contract,  which 
ariseth  from  an  interest  in  land,  or  which  is  an  interest,  may  be  well 
transferred  over.     Wherefore,  &c. 

Adjoumatur. 

The  case  was  now  moved  again;  and  Gawdy  and  Fenner,  and 
Clench  agreeing  with  them,  held,  that  the  devise  was  good,  and  well 
severable:  for  as  to  that  objection,  that  a  mischief  may  happen  to  the 
tenant,  that  he  shall  be  subject  to  two  actions  and  distresses,  that  is 
his  own  fault;  for  if  he  pays  his  rent,  he  shall  avoid  it:  and  the 
same  mischief  is,  where  he  deviseth  part  of  the  reversion  and  rent, 
which  is  agreed  on  the  other  part  to  be  well  enough ;  and  although 
a  contract,  or  a  thing  in  action,  cannot  be  transferred  nor  divided,  yet 
rent  only  may  be.  For  it  is  a  thing  in  possession;  for  he  doth  not 
grant  the  action,  but  the  law  gives  it  as  incident  to  the  rent.  And 
Huntley's  Case,  10  Eliz.  Dyer,  326,  is  express,  where  a  devise  was  of 
a  reversion  upon  a  lease  for  years,  w'ith  the  rent  to  a  man  and  his 
sister,  and  the  heirs  of  their  bodies ;  the  sister  dies  without  issue ;  the 
brother  dies  having  issue ;    the  heir  had  the  moiety  of  the  rent. 

BiG.RlQHTS— 3G 


562  EIGHTS   IX  THE   LAND   OF   ANOTHER  (Part  2 

Popham  e  contra.  For  the  difference  will  be,  when  part  of  a  re- 
version and  rent  is  granted,  that  is  good ;  but  when  the  rent  is  sever- 
ed from  the  reversion,  it  is  otherwise :  for  then  it  is  but  in  nature  of 
an  annuity,  which  cannot  be  granted  by  parcels,  but  entirely;  but  an 
annuity  or  rent  only  are  grantable  over,  because  they  are  things  of 
continuance,  and  are  not  personal.  And  the  reason  of  Huntley's 
Case,  10  Eliz.  Dyer,  326,  is,  because  the  rent  is  divided  with  the  re- 
version. But  notwithstanding,  in  regard  three  of  them  agreed,  he 
consented  that  judgment  should  be  entered  for  the  plaintifiF. 

Note.  That  in  the  argument  of  this  case,  a  case  was  cited  in  this 
Court,  Easter  Term,  28  Eliz.  Roll.  344,  where  a  devise  was  of  an  en- 
tire reversion  and  rent,  which  was  void  for  a  third  part ;  because  it 
was  holden  in  capite,  and  debt  was  brought  for  two  parts  of  the  rent, 
and  adjudged  maintainable.^^ 


NEWCOMB  V.  HARVEY. 

(Court  of  King's  Bench,  1690.     Carth.  161.) 

The  plaintiff  being  lessee  for  years  assigned  over  his  whole  term, 
by  indenture,  to  the  defendant,  rendering  rent,  and  an  action  of  debt 
was  now  brought  for  the  rent  in  arrear. 

The  defendant  pleaded  non  concessit  &  hoc,  &c. 

And  upon  a  demurrer  to  this  plea,  it  was  objected  in  behalf  of  the 
defendant,  that  this  action  would  not  lie,  because  the  sum  reserved 
was  not  properly  any  rent,  but  a  sum  in  gross,  tlie  plaintiff  having 
assigned  .over  his  whole  term,  and  by  consequence  had  no  reversion, 
and  therefore  the  action  ought  to  be  for  a  sum  in  gross  upon  the  con- 
tract, (and  not  debt  for  rent)  and  that  would  not  lie  till  the  last  day 
expires. 

11  Ace:  That  the  right  to  rent  may  be  severed  from  the  reversion.  Rob- 
ins V.  Cox,  1  Lev.  22  (1661);  Brownson  v.  Roy,  133  Mich.  617,  95  N.  W.  710 
(1903) ;  Moffat  v.  Smith,  4  N.  Y.  126  (1S50). 

A.  leased  land  to  X.  for  years,  reserving  a  rent.  A.  left  the  rent  by  will 
to  B.  B.  died.  In  a  contest  between  B.'s  heir  and  B.'s  executor,  held,  the 
latter  is  entitled  to  the  future  rent.     Knolle's  Case,  Dyer,  56  (1534). 

A.  leased  land  to  X.  for  years,  reserving  a  i-ent.  A.  mortgaged  the  prem- 
ises to  B.  Tlie  mortgage  contained  this  clause:  B.  "is  to  receive  all  the 
rents  to  be  derived  from  said  lease  *  *  *  and  this  deed  shall  operate 
as  an  assignment  of  the  interest  of  the  said  A.  in  said  lease."  B.  sued 
X.  in  his  own  name  for  rent  accruing  after  the  execution  of  the  mortgage. 
The  court  held  the  action  maintainable,  saying:  "The  doctrine  of  the  com- 
mon law,  that  choses  in  action  are  not  assignable,  does  not  obtain  with  us." 
Watson  V.  Hunkins,  13  Iowa,  547  (1862). 

The  lessor  mav  convev  the  reversion,  but  retain  the  right  to  the  rent. 
Crosbv  V.  Ivoop,  13  111.  025    (18.52)  ;  Goodwin  v.  Hudson,  60  Ind.  117  (1877). 

See  Cheatham  v.  J.  W.  Beck  Co.,  96  Ark.  230,  131  S.  W.  699  (1910). 

If  the  reversion  in  parts  of  the  leased  premises  is  conveyed  to  separate' 
grantees,  the  rent  is  divided  proportionately,  and  each  grantee  may  recover 
his  proportionate  part  of  the  rent.     Swansea   v.  Thomas.   10   Q.    B.    D.   48 
(1882) ;  Worthington  v.  Cooke,  56  Md.  51  (1881) ;  Linton  v.  Hart,  25  Pa.  193, 
64  Am.  Dec.  691  (1855) ;   Pelton  v.  Place,  71  Vt.  4.30,  46  Atl.  63  (1899). 


Ch.  6)  RENTS  563 

To  wlliich  it  was  answered,  and  so  resolved  per  Curiam,  that  this 
is  rent,  tho'  the  plaintiff  had  no  reversion;  for  if  a  rent  is  reserved 
upon  a  feoffment  in  fee,  there  is  no  reversion  in  the  f eoffer ;  but  yet 
this  is  a  rent,  and  recoverable  by  the  name  of  a  rent  upon  the  contract, 
and  so  it  shall  be  in  the  principal  case. 

Moreover,  if  the  defendant  had  assigned  over  the  term  to  another, 
an  acrion  of  debt  would  lie  for  the  plaintiff  against  the  second  assignee. 

The  plaintiff  had  judgment.^ ^ 


WILSTON  V.  PILKNEY. 

(Court  of  King's  Bench,  1673.     1  Vent.  242.) 

In  debt  for  rent  the  plaintiff  declared,  that  the  dean  and  chapter  of, 
&c.  demised  to  the  defendant  for  Hfe;  by  force  of  which  he  entered 
and  demised  the  land  to  the  plaintiff'  for  years,  by  virtue  of  which 
he  was  possessed,  and  afterwards  granted  to  the  defendant,  reserving 
a  rent,  for  which  he  brings  his  action. 

To  this  declaration  the  defendant  demurs. ^^  *  *  * 
Thirdly,  as  to  the  matter,  that  the  reservation  was  void,  it  being 
upon  a  surrender  by  parol.  A  rent  cannot  be  reserved  upon  a  feoff- 
ment by  parol;  so  where  lessee  for  life  or  years  assigns  over  his 
whole  interest,  12  H.  4,  14;  9  H.  6,  43;  12  H.  4,  17.  Also  no  rent 
can  be  reserved  upon  a  conveyance  that  works  an  extinguishment,  un- 
less by  deed,  where  it  is  good  upon  the  contract.  Peto's  Case,  3  Cro. 
101,  is,  that  a  surrender  drowns  the  interest  to  all  intents  and  pur- 
poses between  the  parties.  Dyer,  251.  The  tenant  for  life  agreed 
with  him  in  reversion,  that  he  should  have  his  land  for  the  annual 
rent  of  20s.  'tis  doubted  there  whether  this  amounts  to  a  surrender, 
there  being  no  deed  or  livery.  But  in  2  Roll.  497,  'tis  said,  if  it  had 
been  a  surrender  the  reservation  had  been  void.  *  *  * 
As  to  the  matter,  the  Court  resolved  for  the  plaintiff.  For 
1.  The  reservation  was  good  by  the  contract,  tho'  without  deed. 
And  so  it.  was  adjudged  in  this  Court  in  Manly's  Case,  that  tenant 
for  years  might  assign  his  whole  term  by  parol,  rendering  rent;  so 
in  the  case  of  Purcas  and  Owen,  23  Car.  But  it  was  doubted,  wheth- 
er an  action  would  lie  until  the  last  day  were  past.  'Tis  all  one  where 
the  grant  is  made  to  him  in  reversion,  which  is  not  actually,  but  con- 
sequentially a  surrender  by  operation  of  law,  before  which  the  contract 
is  perfected,  upon  which  the  rent  arises.  7  E.  4,  is,  that  the  lessee  may 
surrender  upon  condition;   and  there  is  no  reason,  why  a  rent  can- 

12 A.  leases  to  X.  for  years.  X.  assigns  his  whole  term  to  Y.,  reserving  a 
rent.  X.  assigns  his  right  to  the  rent  to  M.  Held,  M.  may  sue  Y.  in  debt 
in  his  own  name  for  the  rent  so  reserved.  Williams  v.  Hayward,  1  K.  & 
E.  1040  (1859) ;  Clark  v.  Coughlan,  3  Ir.  L.  R.  427  (1841) ;  Patten  v.  Deshon, 
1  Gray   (Mass.)  325   (1854). 

13  Fart  of  the  opinion  is  omitted. 


564  RIGHTS  IN   THE  LAND  OF  ANOTHER  (Part  2 

not  be  created*  upon  it  as  well  as  a  condition.  If  it  were  in  the  case 
of  tenant  for  life,  a  deed  were  requisite  as  well  for  a  rent  as  a  condi- 
tion, in  respect  of  the  freehold,  but  that  is  not  so  in  the  case  of  ten- 
ant for  years. 


LOYD  V.  LANGFORD. 

(Court  of  Common  Pleas,   1677.    2  Mod.  174.) 

A  special  verdict.  The  case  was :  A.  being  a  tenant  in  fee  of  lands, 
demised  the  same  to  B.  for  seven  years.  B.  re-demised  the  same 
lands  to  A.  for  the  said  term  of  seven  years,  reserving  twenty  pounds 
rent  per  annum.  A.  dies;  his  wife  enters  as  guardian  to  the  heir  of 
A.  her  son,  and  receives  the  profits.  B.  brings  debt  against  her  as  ex- 
ecutrix de  son  tort,  in  the  debet  et  detinet. 

The  question  was,  whether  this  action  would  lie  or  not? 

Baldwin,  Serjeant,  who  argued  for  the  plaintiff,  held,  that  it  did 
lie;  for  though  the  rent  reserved  in  this  case  did  not  attend  the  re- 
version, because  the  lessee  had  assigned  over  all  his  terni,  yet  an  ac- 
tion of  debt  will  lie  for  that  rent  upon  the  contract.  Cro.  Jac.  487. 
Witton  V.  Bye,  45  Edw.  3,  pi.  8.  20  Edw.  4,  pi.  13.  Covenant  will 
lie  upon  the  words  "yielding  and  paying."  If  then  here  is  a  good 
rent  reserved,  the  wife,  who  received  the  profits,  becomes  executrix 
de  son  tort,  and  so  is  liable  to  the  payment.  It  hath  been  held,  that 
there  cannot  be  an  executor  de  son  tort  of  a  term,  but  the  modern 
opinions  are  otherwisp.     ♦     *     * 

Pemberton,  Serjeant,  for  the  defendant,  would  not  undertake  to 
answer  these  points  which  were  argued  on  the  other  side,  but  admitted 
them  to  be  plain  against  him ;  for  he  did  not  doubt  but  that  debt  would 
lie  upon  the  contract,  where  the  whole  term  was  assigned,  and  that 
there  may  be  an  executor  de  son  tort  of  a  term.  But  he  said,  that 
which  was  the  principal  point  in  the  case  was  not  stirred:  the  ques- 
tion was,  whether  an  action  of  debt  will  lie  against  the  defendant  as 
executor  de  son  tort,  where  there  is  no  term  at  all?  for  it  is  plain 
there  was  none  in  being  in  this  case;  because  when  the  lessee  re-de- 
mised his  whole  term  to  the  lessor,  that  was  a  surrender  in  law,  and 
as  fully  as  if  it  had  been  actually  surrendered:  and  therefore  this 
was  quite  different  from  the  case,  where  lessee  for  years  makes  an 
assignment  of  his  whole  term  to  a  stranger,  debt  will  lie  upon  the 
contract  there,  because  an  interest  passes  to  him  in  reversion ;  and  as 
to  this  purpose  a  term  is  in  esse  by  the  contract  of  the  parties,  and  so 
it  would  here  against  the  first  lessor,  who  was  lessee  upon  the  re-de- 
mise :  but  now,  because  of  the  surrender,  the  heir  is  entitled  to  enter, 
and  the  mother,  who  is  the  defendant,  enters  in  his  right  as  guardian, 
which  she  may  lawfully  do.  If,  therefore  debt  only  lies  upon  the 
contract  of  the  testator,  as  in  truth  it  doth  where  the  whole  term  is 
gone,  the  plaintiff  cannot  charge  any  one  as  executor  de  son  tort  in 


Ch.  G)  RENTS  565 

the  debet  et  detinet.  And  the  whole  term  is  gone  here  by  the  re-de- 
mise, which  is  an  absolute  surrender,  and  not  upon  condition;  for 
in  such  case  the  surrender  might  have  entered  for  non-performance, 
and  so  it  might  have  been  revived. 

And  of  this  opinion  was  the  whole  Court  in  both  points,  and  would 
not  hear  any  farther  argument  in  the  case.     The  plaintiff  having  no 
remedy  at  law,  the  Court  told  him  that  he  might  seek  for  relief  in' 
Chancery,  if  he  thought  fit. 


ST.  4  GEORGE  II,  c.  28,  §  5. 

And  whereas  the  remedy  for  recovering  rents  seek,  rents  of  as- 
size, and  chief  rents,  are  tedious  and  difficult,  be  it  therefore  enacted 
by  the  authority  aforesaid,  That  from  and  after  the  twenty-fourth 
day  of  June  one  thousand  seven  hundred  and  thirty-one,  all  and  every 
person  or  persons,  bodies  politic  and  corporate,  shall  and  may  have  the 
like  remedy  by  distress,  and  by  impounding  and  selling  the  same,  in 
cases  of  rent  seek,  rents  of  assize,  and  chief  rents,  which  have  been 
duly  answered  or  paid  for  the  space  of  three  years,  within  the  space  of 
twenty  years  before  the  first  day  of  this  present  session  of  Parlia- 
ment, or  shall  be  hereafter  created,  as  in  case  of  rent  reserved  upon 
lease;   any  law  or  usage  to  the  contrary  notwithstanding. 


V.  COOPER. 


(Court  of  Common  Pleas,  1768.     2  Wils.  375.) 

In  replevin,  the  defendant  avows  under  a  distress  for  rent  due 
from  the  plaintiff  to  him  upon  an  assignment  of  a  lease  of  a  term  for 
years  to  the  plaintiff,  in  which  assignment  there  is  no  clause  of  dis- 
tress ;  the  single  question  is,  Whether  this  is  such  a  rent  for  which  a 
distress  lies,  there  being  no  reversion  in  the  defendant.  It  was  said  for 
the  defendant,  that  although  rent  be  incident  to  the  reversion,  yet  it  is 
not  an  inseparable  incident,  and  therefore  it  may  be  severed  from  the 
reversion;  and  although  there  is  no  clause  of  distress  in  the  assign- 
ment of  the  term,  yet  the  rent  reserved  thereupon  may  be  considered 
as  a  rent-seek,  and  distrained  for  by  the  statute  4  Geo.  2.  c.  28,  sec. 
5,  and  that  it  appears  clearly  to  be  the  intent  of  the  parties  that  the 
plaintiff  should  pay  rent  to  the  defendant;  this  case  was  so  clear,  that 
the  court  gave  judgment  for  the  plaintiff  without  hearing  his  counsel. 

Curia.  There  are  two  ways  of  creating  rent;  the  owner  of  the 
lands  either  grants  a  rent  out  of  it;  or  grants  the  lands  and  reserves 
a  rent;  there  is  no  such  thing  as  a  rent-seek,  rent-service  or  rent- 
charge  issuing  out  of  a  term  for  years.  Bro.  Dette,  pi.  39,  cites  43 
Ed.  3,  4,  per  Fynchden  Ch.  Justice  C.  B.  If  a  man  hath  a  term  for 
years,  and  grants  all  his  estate  of  the  term  rendering  certain  rent,  he 


566  RIGHTS  IN  THE  LAND   OF  ANOTHER  (Part  2 

cannot  distrain  if  the  rent  be  in  arrear;  this  case  is  law  and  in  point; 
therefore  ri  the  avowant  will  recover  what  is  owing  to  him  from  the 
plaintiff,  he  must  bring  his  action  upon  the  contract. 
Judgment  for  the  plaintiff  per  totam  curiam.^* 


WEBB  V.  RUSSELL. 

(Court  of  King's  Bench,  1789.    3  Term  R.  393.) 

This  was  an  action  of  covenant.  The  declaration  stated  an  indenture 
of  26th  October,  1780,  by  which  William  Stokes,  and  R.  Webb  who  was 
described  to  be  the  mortgagee  of  the  premises  in  question,  demised 
them  to  the  defendant  for  1 1  years,  from  the  29th  September  then  last, 
at  the  yearly  rent  of  £200.  payable  to  Stokes  or  his  assigns ;  in  which 
were  contained  covenants  on  the  part  of  the  defendant  with  Stokes 
and  his  assigns  (inter  alia)  to  pay  the  rent,  and  to  keep  the  premises 
in  repair.  It  then  stated  that  R.  Webb  at  the  time  of  the  lease  was 
possessed  of  the  premises  for  the  residue  then  to  come  and  unexpired 
of  a  term  of  99  years,  commencing  on  the  24th  of  June,  1770,  sub- 
ject to  an  equity  of  redemption  by  Stokes  on  payment  of  a  certain  sum 
with  interest  to  R.  Webb.  That  the  defendant  entered  on  26th  Octo- 
ber, 1780,  and  became  possessed  for  the  term  of  11  years,  the  rever- 
sion thereof  for  the  term  of  99  years  belonging  to  R.  Webb,  subject 
to  such  equity  of  redemption,  and  the  further  reversion  in  fee  belonging 
to  one  G.  Medley.  It  then  stated  that  by  indentures  of  lease  and  re- 
lease of  the  23d  and  24th  March,  1781,  Medley  granted  the  reversion 
in  fee,  expectant  on  the  determination  of  the  terms  for  99  years,  to 
Stokes  and  Morgan  Thomas ;  who,  by  indentures  of  lease  and  release, 
dated  26th  and  27th  March,  178.1,  and  made  between  Stokes  and 
Thomas  of  the  first  part,  R.  Webb  of  the  second  part,  and  Makepeace 
Thackeray  of  the  third  part,  granted  it  to  Thackeray  his  heirs  and 
assigns  in  trust  for  R.  Webb  his  heirs  and 'assigns,  subject  to  a  pro- 
viso for  redemption  on  payment  of  a  certain  sum  of  interest  by  Stokes 
to  R.  Webb  on  a  day  therein  mentioned  and  since  past.  That  on  the 
30th  May,  1785,  R.  Webb  died,  having  first  made  his  will;  by  which 

14 Ace:  Parmenter  v.  Webber,  8  Taunt.  50:?  (1818);  Lewis  v.  Baker, 
[1905]  1  Ch.  46 :  rre.<!Cott  v.  De  Forest,  16  .Tohns.  (N.  Y.)  159  (1819) :  Ege  v. 
Ege.  5  Watts  (Pa.)  134  (1S36).  Compare  Doe  v.  Bateman.  2  B.  &  Aid.  168 
(1818).     See  note  to  Tlie  King  v.  Wilson.  5  Man.  &  Ry.  140,  157  (1829). 

It  seems  that  by  the  common  law  of  England  neither  the  burden  of  a 
covenant  for  the  payment  of  a  rent  charge  in  fee  nor  the  right  to  enforce 
such  a  covenant  runs  with  the  land  or  the  rent.  See  Brewster  v.  Kidgili, 
12  Mod.  166  (1698) ;  Milnes  v.  Branch.  5  M.  &  S.  411  (1816).  The  rule  is  otlv 
erwise  in  some  jurisdictions  in  tlie  United  States.  See  Van  Rensselaer  v. 
Read,  26  N.  Y.  558  (1863) ;  Tyler  v.  Heidorn,  46  Barb.  (N.  Y.)  439  (1866) ; 
Streaper  v.  Fisher,  1  Rawle  (Pa.)  155,  18  Am.  Dec.  604  (1829);  Juvenal  v. 
Patterson,  10  Pa.  282  (1849)  :  Springer  v.  Phillips.  71  Pa.  60  (1872) ;  Scott 
V.  Lunt,  7  Pet.  590,  8  L.  Ed.  797  (1833).  Compare  Raby  v.  Reeves,  112  N.  C. 
688,  16  S.  E.  760  (189.3). 


Ch.  6)  RENTS  5(>7 

he  bequeathed  to  the  plaintiff  all  his  worldly  estate,  and  appointed  her 
sole  executrix ;  that  she  proved  the  will,  took  upon  herself  the  burthen 
of  the  execution  of  it,  assented  to  the  said  bequest,  and  claimed  lo 
have  the  reversion  of  the  premises  for  the  residue  of  the  term  of  99 
years,  (subject  to  Stoke's  equity  of  redemption)  and  the  money  thereup- 
on secured  to  R.  Webb,  as  legatee ;  and  by  virtue  of  that  bequest,  assent, 
and  claim,  she  became  possessed  of  the  said  reversion  for  the  residue 
of  the  term  of  99  years,  subject,  &c.  That  by  indentures  of  lease 
and  release,  dated  12th  and  13th  February,  1787,  and  made,  between 
Thackeray  of  the  first  part,  Stokes  of  the  second  part,  and  the  plain- 
tiff of  the  third  part,  Thackeray  and  Stokes  granted  and  released  to  the 
plaintiff  the  reversion  of  the  premises  in  fee,  freed  and  discharged  from 
all  right  and  equity  of  redemption  whatsoever,  by  virtue  whereof  she 
became  and  was  and  still  is  seised  in  fee  of  the  reversion  of  the  prem- 
ises, immediately  expectant  on  the  determination  of  the  term  of  11 
years.  The  declaration  concluded  with  setting  forth  two  breaches  of 
covenant;  the  one  for  non-payment  of  one  year  and  one  quarter's 
rent,  due  at  Lady-day,  1788;  and  the  other  for  not  keeping  the  prem- 
ises in  repair. 

To  this  there  was  a  general  demurrer ;  and  joinder. 

Lord  Kexyon,  Ch.  J.,  now  delivered  the  opinion  of  the  Judges 
then  in  Court. 

I  cannot  conceive  why  tlie  plaintiff  has  introduced  into  her  declara- 
tion many  facts  there  stated.  If  there  were  no  other  objection  against 
the  plaintiff''s  recovering  in  this  action,  the  pleader  has  raised  some 
difficulty  to  himself  by  stating  that  the  plaintiff,  who  was  executrix, 
assented  to  the  legacy  to  herself,  and  took  the  term  in  her  own  right; 
for  in  some  views  of  this  question,  the  action  possibly  might  have 
been  sustained,  if  the  plaintiff  had  sued  as  executrix ;  because  nothing 
is  clearer  than  that  a  term  which  is  taken  in  alieno  jure  is  not  merged  in 
a  reversion  acquired  suo  jure. 

It  is  extremely  well  settled  at  common  law,  without  referring  to  the 
statute  32  H.  8,  c.  34,  that  covenants  which  run  with  the  land  will  pass 
to  the  person  to  whom  the  land  descends.  And  that  statute  enacted,  for 
the  benefit  of  the  grantees  of  reversions,  that  they  should  have  the  like 
advantages  against  the  lessees,  their  executors,  &c.,  by  entry  for  non- 
payment of  the  rent;  and  should  have  and  enjoy  all  and  every  such 
advantages,  benefits,  and  remedies,  by  action  only  for  not  performing 
other  conditions,  covenants,  or  agreements,  contained  in  the  leases, 
against  the  lessees,  as  the  lessors  or  grantors  had.  The.  statute  also 
contains  a  clause,  giving  the  lessees  the  same  remedy  against  the  gran- 
tees of  the  reversion  which  they  might  have  had  against  their  grantors. 
Therefore  under  this  statute  the  grantees  or  assignees  stand  in  the 
same  situation,  and  have  the  same  remedy  against  their  lessees,  as 
the  heirs  at  law  of  individuals,  or  the  successors  (in  the  case  of  corpo- 
rations), had  before  the  statute.  It  becomes  therefore  necessary  to  en- 
Quire  whether  this  action  of  covenant  could  have  been  maintained  by 


568  RIGHTS  IN  THE  LAND   OF  ANOTHER  (Part  2 

the  heirs  of  the  person  from  whom  the  plaintiff  derives  her  title.  1 
have  already  observed  upon  the  introduction  of  one  fact  into  this  case, 
which  might  have  been  omitted;  there  is  also  another,  which  de- 
serves some  observation  here.  It  is  stated  that  Stokes  was  only  a 
mortgagor,  who  had  parted  with  his  whole  term  to  the  mortgagee ;  and 
the  declaration  goes  on  to  state  that  the  whole  interest  which  was 
vested  in  him  he  had  transferred  to  the  mortgagee.  Therefore,  in  point 
of  law,  I  cannot  conceive  how  this  covenant  made  with  Stokes  can  be 
said  to  run  with  tlie  land;  for  Stokes  is  stated  in  the  declaration  to 
have  no  interest  whatever  in  the  land,  and  yet  both  the  implied  cove- 
nant, "arising  from  the  yielding  and  paying,"  and  also  the  express 
covenants  are  entered  into  with  Stokes.  It  is  not  sufficient  that  a  cov;- 
enant  is  concerning  the  land,  but,  in  order  to  make  it  run  with  the  land, 
there  must  be  a  privity  of  estate  between  the  covenanting  parties.  But 
here  Stokes  had  no  interest  in  the  land  of  which  a  court  of  law  could 
take  notice;  though  he  had  an  equity  of  redemption,  an  interest  which 
a  court  of  equity  would  take  notice  of.  These  therefore  were  collateral 
covenants.  And  though  a  party  may  covenant  with  a  stranger  to 
pay  a  certain  rent  in  consideration  of  a  benefit  to  be  derived  under  a 
third  person,  yet  such  a  covenant  cannot  run  with  the  land. 

But  even  supposing  that  these  covenants  had  been  entered  into  (not 
with  Stokes  but)  with  Webb,  who  had  an  interest  in  the  land,  the  sub- 
sequent transaction,  which  is  stated  in  the  declaration,  puts  an  end  to 
this  question.  It  appears  that  the  person  entitled  to  the  reversion  of 
the  99  years  term,  expectant  on  the  determination  of  the  11  years 
term  created  by  the  lease,  afterwards  acquired  in  her  own  person  the 
absolute  inheritance  of  the  land ;  in  consequence  of  which  the  reversion 
attendant  on  the  lease  granted  to  the  tenant  no  longer  existed.  Another 
estate,  totally  different,  arose  by  the  extinguishment  of  the  interven- 
ing estate.  Many  cases  were  cited  on  this  subject;  one  of  which, 
Moor,  94,  is  very  applicable.  There  a  person  made  a  lease  for  100 
years,  and  the  lessee  made  an  underlease  for  20  years,  rendering  rent, 
with  a  clause  of  re-entry;  afterwards  the  original  lessor  granted  the 
reversion  in  fee,  and  the  grantee  purchased  the  reversion  of  the  term ; 
and  it  was  held  that  the  grantee  should  not  have  either  the  rent,  or  the 
power  of  re-entry ;  for  the  reversion  of  the  term,  to  which  they  were 
incident,  was  extinguished  in  the  reversion  in  fee.  And  though  this 
case  was  only  determined  at  the  assizes,  yet  it  was  afterwards  recogniz- 
ed in  the  Court. 

Considering  then  that  these  are  covenants  entered  into  with  a  stran- 
ger that  do  not  run  with  the  land,  considering  also  that  the  rent  is  in- 
cident to  the  reversion  out  of  which  the  term  is  carved,  and  that 
that  reversion  is  gone,  it  seems  to  me,  with  all  the  inclination  which 
we  have  to  support  the  action,  (and  we  have  hitherto  delayed  giving 
judgment  in  the  hopes  of  being  able  to  find  some  ground,  on  which 
the  plaintiff's  demand  might  be  sustained)  that  it  cannot  be  supported. 
The  defence  which  is  made^is  of  a  most  unrighteous  and  unconscien- 


Ch.  6)  RENTS  569 

tious  nature:  but  unfortunately  for  the  plaintiff  the  mode  which  she 
has  taken  to  enforce  her  demand  cannot  be  supported;  and  consequent- 
ly there  must  be 

Judgment  for  the  defendant." 


McMURPHY  V.  MINOT.     ' 
(Supreme   Court  of  New   Hampshire,   1827.    4  N.   H.   251.) 

This  was  an  action  of  covenant  broken  on  an  indenture  made  the 
12th  July,  1811,  by  which  the  plaintiff  demised  to  Seth  Daniels,  a  certain 
tract  of  land  to  hold  during  her  natural  life,  and  the  said  Daniels  cove- 
nanted with  the  plaintiff  to  pay  her,  on  the  first  day  of  May,  annu- 
ally, a  rent  of  $30. 

The  action  was  brought  against  the  defendant,  as  assignee  of 
Daniels,  for  the  said  rent  from  1st  May,  1817,  to  the  1st  May,  1825, 
and  was  submitted  to  the  decision  of  the  court  upon  the  following  state- 
ment of  facts. 

The  indenture  was  made  as  stated  in  the  declaration,  and  Daniels 
having  entered  under  it,  afterwards  conveyed  all  his  estate  to  one 
Oilman  Dudley,  who,  on  the  3d  April,  1822,  conveyed  the  land  to  the 
defendant  in  fee  and  in  mortgage.  Dudley  remained  in  possession  and 
took  the  profits  until  his  death  in  October,  1822,  and  after  his  decease 
his  administratrix  remained  in  possession,  taking  the  profits  imtil  April, 
1824.  On  the  16th  April,  1824,  a  tenant  entered  upon  part  of  the  land 
under  an  agreement  with  the  defendant  to  pay  rent  to  him  in  case  the 
land  was  not  redeemed. 

On  the  23d  April,  1825,  the  administratrix  of  Oilman  Dudley  con- 
veyed to  the  defendant  the  right  in  equity  to  redeem  the  land  mortgaged 
as  aforesaid,  and  the  defendant's  said  tenant  has  been  in  possession  of 
the  whole  tract  from  that  time  to  the  commencement  of  this  action,  on 
the  22d  March,  1826. 

All  the  interest  which  the  plaintiff  ever  had  in  the  land  was  an  es- 
tate for  her  own  life,  and  the  reversion  was  in  Daniels. 

Richardson,  C.  J.^'  It  has  been  urged  in  behalf  of  the  defend- 
ant in  this  case  that  the  plaintiff  is  not  entitled  to  recover  any  thing, 
bcause  the  rent  was  never  demanded  of  Minot.  The  law  on  this  point 
is  well  settled.  When  a  lessor  proceeds  for  a  forfeiture  or  to  en- 
force a  penalty  he  must  show  a  demand  of  a  rent  on  the  vt?ry  day  it 
was  payable.  But  in  an  action  of  covenant  no  demand  is  necessary. 
18  Johns.  (N.  Y.)  477,  Remsen  v.  Conklin;   Com.  Dig.  "Rent,"  D,  4; 

2  N.  H.  163,  Coon  v.  Brickett. 

We  are  therefore  of  opinion  that  this  objection  to  the  action  cannot 
prevail. 

15 Ace:     Threer  v.  Barton,  Moore,  94   (1570).     See  Thorn  v.  Woollcombe, 

3  B.  &  Ad.  586   (1832). 

16  Part  of  the  opinion  is  omitted. 


570  RIGHTS   IN  THE  LAND  OF  ANOTHER  (Part  2 

It  has  also  been  urged  that  this  action  cannot  be  maintained,  be- 
cause the  particular  estate  and  the  reversion  having  become  united  in 
the  same  person,  the  particular  estate  is  merged  and  the  rent  extin- 
guished. Had  the  rent  in  this  case  been  incident  to  the  reversion  it  is 
clear  that  this  action  could  not  be  maintained.  2  N.  H.  454,  York  v. 
Jones.  But  it  is  well  settled  that  the  rent  is  not  inseparably  incident  to 
a  reversion.    Coke,  Litt.  143,  and  47,  a;  2  Bl.  Com.  176. 

Rent  may  be  reserved  upon  a  grant  of  a  man's  whole  estate  in  which 
case  there  can  be  no  reversion. 

The  case  of  Webb  v.  Russell,  7  D.  &  E.  393,  which  has  been  cited 
by  the  defendant's  counsel  does  apply  in  this  case.  It  was  there  held 
that  where  rent  is  incident  to  a  particular  reversion,  when  that  particu- 
lar reversion  is  merged,  the  rent  is  extinguished.  But  in  this  case 
the  rent  was  never  incident  to  the  reversion.  The  plaintiff  granted 
her  whole  estate  reserving  a  rent,  and  she  had  no  reversion  to  which 
it  could  be  incident. 

In  order  to  maintain  this  ground  it  must  be  shown  that  when  he  who 
has  a  reversion  takes  a  lease  of  the  particular  estate  and  covenants  to 
pay  rent,  such  rent  is  extinguished  by  the  union  of  the  particular  es- 
tate and  the  reversion.  But  this  proposition  cannot  be  sustained  by 
any  reason  or  authority,  and  we^are  of  opinion  that  this  ground  of  de- 
fence fails  altogether.     *     *     * 

In  considering  this  case,  the  question  occurred  to  us  whether  the 
liability  of  the  defendant  could  be  affected  by  the  circumstance  that 
the  rent  was  reserved  upon  a  grant  of  the  freehold,  while  the  con- 
veyance to  him  was  in  fee.  But  we  find  that  it  has  been  decided  that 
covenant  will  lie  against  the  assignee  of  part  of  an  estate  for  not  re- 
pairing his  part,  for  it  is  divisible  and  follows  the  land.  Cro.  Car. 
222,  Congham  v.  King ;  2  East,  580. 

And  we  are  not  able  to  discover  any  reason  why  he  who  takes  a 
larger  estate  should  not  be  bcmnd  by  a  covenant  running  with  a  less 
estate  which  is  parcel  of  the  larger. 

On  behalf  of  the  plaintiff  it  has  been  argued  that  the  defendant  is 
liable  in  this  action,  not  only  for  the  rent  which  has  become  due  since 
he  became  owner  of  the  land,  but  the  rent  which  became  due  before 
that  time. 

The  cases  which  have  been  cited  by  the  defendant's  counsel  seem 
to  show  that  the  law  is  not  so. 

It  is  another  argument  in  favor  of  the  defendant,  that  when  the 
action  is  against  an  assignee,  it  is  usual  to  allege  in  assigning  the 
breach  of  the  covenant,  that  the  breach  happened  after  the  assign- 
ment. 2  Chitty's  PI.  191;  Lilly,  134;  6  Johns.  (N.  Y.)  105;  Dubois 
v.    VanOrden;  Carthew,  177;  2  Ventris,  231. 

It  is  said  in  Woodfall,  274  and  338,  that  an  assignee  is  liable  for 
arrearages  of  rent  incurred  before,  as  well  as  during  his  enjoyment; 
but  he  cites  no  case  in  which  it  has  been  so  decided,  and  offers  no  ar- 
gument in  support  of  the  propositions,  and  we  are  of  opinion  that  this 


Ch.  6)  RENTS  571 

is  not  law,  and  there  must  be  judgment  for  the  plaintiff  for  the  rent 
which  has  become  due  since  the  3d  of  April,  1822. 
Judgment  for  the  plaintiff. 


SMILEY  et  al.  v.  VAN  WINKLE  et  al. 
(Supreme  Court  of  California,  1856.    6  Cal.  005.) 

This  was  an  action  against  P.  W.  Van  Winkle,  H.  W.  Halleck 
and  A.  C.  Peachy,  for  the  rent  of  certain  premises  leased  by  plaintiffs 
to  John  Middleton,  tlie  lease  being  by  him  assigned  to  Henry 
Haight,  by  whom  it  was  assigned  to  J.  L.  Folsom;  the  defendants 
being  appointed  executors  of  the  latter  shortly  after  his  death,  and  hav- 
ing held  the  premises  as  such  executors  for  the  time  for  which  the 
rent  is  sought  to  be  recovered. 

The  complaint  sets  forth  in  full  the  lease  from  the  plaintiffs  to 
John  Middleton,  in  which  it  is  recited  that  the  property  is  demised  to 
him  for  the  unexpired  term  of  a  lease  thereof  made  to  the  plaintiffs* 
by  J.  L.  Folsom.  The  lease  to  Middleton  employs  the  usual  words  of 
demise,  and  contains  a  reservation  of  rent  and  covenant  of  re-entry 
for  conditions  broken.  The  defence  set  up  is  that  the  defendants 
have  only  occupied  the  premises  as  executors  of  Folsom,  and  that  the 
accounts  of  plaintiffs  for  rent  have  been  presented  and  allowed,  to 
be  paid  in  due  course  of  administration,  and  that  the  defendants  are 
not  liable  therefor,  de  bonis  propriis.  The  Court  below  entered  judg- 
ment for  the  defendants.    Plaintiffs  appealed. 

The  opinion  of  the  Court  was  delivered  by  Mr.  Chief  Justice  Mur- 
ray.    Mr.  Justice  Heydenfeldt  and  Mr.  Justice  Terry  concurred. 

The  question  presented  bv  this  case,  say  the  learned  counsel  for  the 
appellants,  is,  "whether  executors  who  have  entered  into  and  possessed 
a  leasehold  estate  of  which  their  testator  was  assignee,  are  liable  for 
the  rents  accruing  during  the  possession  as  assignees  de  bonis  pro- 
priis." 

Were  this  the  only  question,  we  would  have  no  difficulty  in  deciding 
it  in  the  affirmative,  but  the  facts  of  the  case  present  a  somewhat  dif- 
ferent inquiry. 

The  conveyance  by  Smiley  et  al.,  although  it  employs  words  ordi- 
narily used  in  a  demise,  and  contains  a  reservation  of  rent  and  the 
right  of  re-entry  upon  covenants  broken,"  is  not  an  underletting  or 
sub-lease,  but  is  considered  in  law  as  an  assignment  of  their  whole 
interest,  as  there  remains  in  them  no  reversion  of  the  estate;  for  it 
is  one  of  the  essentials  of  a  lease,  that  it  should  contain  a  reversion  in 
favor  of  the  party  from  whom  the  grant  or  assurance  proceeds. 

If  this  position  be  correct,  and  we  are  satisfied  it  cannot  be  success- 
fully controverted,  then  the  instrument,  which  was  possibly  intended 
for  a  demise  by  the  parties,  in  reality  operated  a  conveyance  of  the  en- 
tire estate  of  the  lessees  to  Middleton,  through   whom,  by  sundry 


572  RIGHTS   IN  THE  LAND   OF  ANOTHER  (Part  2 

mesne  conveyances,  it  afterwards  returned  to  the  grantor,  and  was 
merged  in  fee  and  thereby  extinguished.  No  action  will  lie  against 
the  executors,  although  it  might  have  been  otherwise,  had  there  been 
no  merger. 

Judgment  affirmed.  , 


BEAL  V.  BOSTON  CAR  SPRING  CO. 

(Supreme  Judicial  Court  of   Massachusetts,   1878,     125   Mass.   157,   28   Am. 

Rep.  216.) 

Contract  for  rent  due  under  a  written  lease  made  by  Heyer  Broth- 
ers to  the  defendant  for  the  term  of  five  years  from  April  1,  1874,  and 
by  Heyer  Brothers  assigned  to  the  plaintiff. 

At  the  trial  in  the  Superior  Court,  before  Allen,  J.,  it  appeared  in 
evidence  that  the  premises  described  in  the  lease  of  Heyer  Brothers 
to  the  defendant  constituted  a  part  of  the  same  premises  which  Heyer 
'Brothers  held  under  and  by  virtue  of  a  lease  to  them  for  a  term  of 
ten  years  from  April  1,  1874,  made  by  the  plaintiff,  who  was  the 
owner  of  the  premises ;  that  on  February  7,  1877,  when  the  plaintiff 
received  the  assignment  from  Heyer  Brothers  of  their  lease  to  the 
defendant,  he  executed  upon  the  back  of  the  original  lease  from  himself 
to  Heyer  Brothers  the  following  instrument:  "Boston,  February  7, 
1877.  The  within-named  lessor,  in  consideration  of  the  assignment  to 
him  of  certain  underleases  made  by  the  within-named  lessees  of  parts 
of  the  premises  demised  in  the  within  lease,  and  of  one  dollar  to  him 
paid  by  the  within-named  lessees,  doth  hereby  release  and  forever  dis- 
charge the  said  lessees,  their  heirs,  executors  and  administrators,  of 
and  from  all  claims,  demands  and  causes  of  action  of  and  concerning 
the  within  lease,  and  especially  all  claims  by  him  for  rent  thereunder ; 
and  said  lessees  do  hereby  surrender  and  yield  up  the  said'  lease  and 
the  premises  within  described  to  said  lessor,  and  such  surrender  is 
hereby  accepted  by  him,  but  without  prejudice  to  the  leases  of  parts 
of  the  premises  assigned  to  him  as  above  mentioned."  It  further  ap- 
peared that  the  terms  of  this  instrument  were  carried  out,  and  that 
Heyer  Brothers  ceased  to  occupy  the  premises. 

The  defendant  offered  to  show  that  it  had  not  been  in  the  occupa- 
tion of  the  premises  since  February  7.  This  evidence  was  objected  to 
as  being  immaterial,  and  was  excluded. 

The  defendant  contended  and  asked  the  judge  to  rule  that  if,  by  the 
arrangement  entered  into  between  the  plaintiff  and  Heyer  Brothers, 
the  original  lease  was  on  February  7,  1877,  given  up,  discharged  or 
vacated,  and  the  tenancy  of  Heyer  Brothers  thereupon  ceased,  and 
the  plaintiff  resumed  control  of  the  premises,  and  Heyer  Brothers  at 
the  same  time  assigned  and  transferred  to  the  plaintiff  the  underlease 
before  then  held  by  the  defendant  from  them ;  and  if  the  defendant, 
when  informed  of  this,  ceased  to  have  anything  further  to  do  with  the 


Ch.  G)  KENTS  573 

premi^ses,  and  refused  to  recognize  as  longer  subsisting  or  continuing  in 
force  the  underlease  given  to  them  by  Heyer  Brothers,  or  to  become 
liable  to  the  plaintiff  as  assignee  thereof  in  any  way,  the  plaintiff  could 
not  maintain  his  action. 

The  judge  refused  so  to  rule,  but  ruled  that  the  plaintiff  was  entitled 
to  recover;  and  directed  the  jury  to  return  a  verdict  for  the  plaintiff. 
The  defendant  alleged  exceptions. 

Endicott,  J.  The  plaintiff,  being  the  owner  of  the  estate  leased 
the  same  for  the  term  of  ten  years  to  Heyer  Brothers;  and  they,  on 
the  same  day,  leased  a  part  of  the  premises  to  the  defendant  for  a  term 
of  five  years.  It  is  to  be  inferred  from  the  subsequent  agreement  be- 
tween the  plaintiff  and  Heyer  Brothers  that  other  underleases  were 
made.  Before  the  expiration  of  the  underlease  to  the  defendant,  Hey- 
er Brothers  assigned  it  to  the  plaintiff ;  who  at  tlie  same  time  indorsed 
on  the  original  lease  to  Heyer  Brothers  an  agreement  releasing  them 
from  rent  and  accepting  the  surrender  of  their  lease  and  the  premises, 
"but  without  prejudice  to  the  leases  of  parts  of  the  premises  assigned  to 
him."  This  agreement  was  made  in  consideration  of  the  assignment 
to  the  plaintiff  of  the  underleases  by  Heyer  Brothers. 

The  intention  of  the  parties  is  plain.  Heyer  Brothers  having  made 
underleases  of  parts  of  the  premises  which  the  plaintiff  was  willing  to 
take,  and  desiring  also  to  surrender  the  reversion  in  the  leases  to  the 
plaintiff,  which  he  was  willing  to  accept,  the  underleases  were  assigned, 
including  the  defendant's,  and  the  surrender  of  the  original  lease  ac- 
cepted without  prejudice  to  the  underleases.  They  evidently  did  not 
intend  that  the  rights  of  the  plaintiff  under  the  assignment,  or  the  es- 
tates of  the  sub-lessees,  should  be  destroyed  by  the  surrender,  for  the 
language  of  the  acceptance  carefully  provides  for  both.  The  purpose 
was  to  put  the  plaintiff  precisely  in  the  position  of  Heyer  Brothers. 
This  intention,  as  expressed  iti  the  papers  they  have  executed,  will  be 
carried  out,  if  consistent  with  the  rules  of  law,  and  we  are  of  opinion 
that  it  is. 

The  plaintiff  brings  this  action,  as  assignee  of  the  lease,  to  recover 
upon  the  defendant's  covenant  to  pay  rent ;  and  it  is  well  settled  that 
when  a  lease  is  assigned  without  the  reversion,  the  privity  of  contract 
is  transferred,  and  the  assignee  may  sue  in  his  own  name  for  the 
rent  accruing  after  the  assignment.  Kendall  v.  Garland,  5  Cush.  74; 
Hunt  v.  Thompson,  2  Allen,  341.  The  only  objection  suggested  to 
the  plaintiff's  right  to  recover  is  the  surrender  of  the  lease  of  Heyer 
Brothers  to  the  plaintiff ;  and  the  claim  is,  that  the  rent  due  from  the 
defendant  is  an  incident  of  the  reversion  in  Heyer  Brothers,  and,  the 
reversion  having  been  extinguished  by  the  surrender,  all  remedies  in- 
cident to  it  are  taken  away.  But  rent  is  not  necessarily  an  incident 
to  the  reversion,  so  that  it  cannot  by  the  acts  or  agreements  of  the 
parties  be  separated  from  it.  In  a  general  grant  of  the  reversion,  the 
rent  will  pass  as  incident  to  it.  Burden  v.  Thayer,  3  Mete.  76,  Z7 
Am.  Dec.  117.     But  the  reversion  may  be  granted  and  the  rent  re- 


574  RIGHTS  IN  THE  LAND   OF   ANOTHER  (Part  2 

served,  or  the  rent  may  be  assigned,  reserving  the  reversion,  if  such 
is  the  intention  of  the  parties  as  expressed  in  the  words  they  use. 
Lord  Coke  says  that  fealty  is  an  incident  inseparably  annexed  to  the 
reversion,  and  the  donor  or  lessor  cannot  grant  the  reversion  and  save 
to  himself  the  fealty;  but  the  rent  he  may  except,  because  the  rent, 
though  it  be  an  incident,  yet  is  not  inseparably  incident.  Co,  Lit. 
143a,  151b;  3  Cruise,  Dig.  337;  Demarest  v.  Willard,  8  Cow.  (N.  Y.) 
206.  Heyer  Brothers  therefore  could  have  granted  their  reversion, 
or  surrendered  it  to  the  plaintiff  and  reserved  the  rent  accruing  upon 
the  under  leases.  In  such  a  case,  their  relations  to  the  sub-lessees  would 
not  be  changed  by  the  grant  or  surrender  of  the  reversion,  and  they 
could  have  recovered  rent  of  this  defendant  upon  the  covenants  of 
its  lease.  Having  that  estate  reserved  in  the  premises,  they  could  have 
assigned  it  to  a  third  party  or  to  the  plaintiff,  and  the  assignment  would 
have  been  good,  and  the  defendant  would  have  been  bound  to  pay  to 
the  assignee  rent  for  the  estate  held  under  its  lease.  This  form  of 
proceeding  was  not  adopted  by  the  parties,  but  the  same  result  was 
accomplished.  As  the  assignments  were  simultaneous  with  the  sur- 
render, Heyer  Brothers  did  not  in  terms  reserve  the  rent  to  them- 
selves, but  the  plaintiff  accepted  the  surrender  in  consideration  of  the 
assignment,  wilii  the  express  stipulation  that  it  should  not  prejudice 
the  underleases  assigned  to  him;  that  is,  should  not  invalidate  the 
assignment,  or  affect  the  rights  of  the  parties  holding  the  leases. 

The  case  is  not  presented,  what  would  be  the  rights  of  Heyer  Broth- 
ers against  this  defendant ;  or  what  would  be  the  rights  of  the  plain- 
tiff, if  he  had  not  taken  an  assignment  of  the  underleases,  and  had  ac- 
cepted a  surrender  without  qualification.  The  two  cases  of  Grundin  v. 
Carter,  99  Mass.  15,  and  Webb  v.  Russell,  3  T.  R.  393,  relied  on  in 
support  of  the  proposition  of  the  defendant,  have  no  appHcation  to  the 
facts  here  presented. 

Exceptions  overruled/' 

17A.  leased  premises  to  B.,  who  subleased  to  C.  B,  surrendered  his  re- 
version to  A.  C.  then  paid  A.  a  month's  rent.  Held,  this  establishes  the 
relation  of  landlord  and  tenant  between  A.  and  C,  accordins  to  the  terms 
of  the  B.-G.  lease.  McDonald  v.  May.  96  Mo.  App.  236.  69  S.  W.  1059  (190:^). 
See,  also,  Bailev  v.  Richardson,  66  Cal.  416,  5  Pac.  910  (1885) ;  Appleton  v. 
Ames,  150  Mass.  34,  22  N.  E.  G9,  5  L.  R.  A.  206  (1SS9) ;  I>atta  v.  Weiss.  131  Mo. 
2.30,  32  S.  W.  1005  (1895) ;  Krider  v.  Ramsey,  79  N.  C.  354  (1878)  r  Hessel  v. 
Johnson,  129  Pa.  173,  18  Atl.  754,  5  L.  R.  A.  851,  15  Am.  St.  Rep.  716  (1889). 
Compare  Rochester  Lodge  No.  21,  A.  F.  &  A.  M.,  v.  Graham,  65  Minn.  457, 
68  N.  W.  79,  37  L.  R.  A.  404  (1896). 


Ch.  6)  RENTS  575 


SECTION  2.— SUSPENSION  AND  APPORTIONMENT 

OF  RENTS 


WHITE  et  al.  v.  MOLYNEUX. 
(Supreme  Court  of  Georgia,  1S47.    2  Ga.  124.) 

NiSBET,  J.^'  *  *  *  'Phis  was  an  action  for  rent,  to  which  the 
defendant  pleaded  the  destruction  of  the  house  rented,  by  fire.  Upon 
motion  the  Court  ordered  the  plea  to  be  stricken  out,  and  error  is  as- 
signed upon  that  decision.  We  consider  this  question  as  conclusively 
settled  in  England  and  the  United  States,  if  authority  can  settle  any- 
thing. It  is  well  settled,  that  neither  a  court  of  law,  nor  of  equity, 
will  relieve  against  an  express  contract  to  pay  rent  upon  the  ground 
that  the  premises  have  been  destroyed  by  fire,  or  the  King's  enemies, 
or  any  casualty  whatever,  unless  that  is  an  express  stipulation  to  that 
effect.  Inevitable  accident  will  excuse  a  party  from  a  penalty,  but 
will  not  relieve  him  from  his  covenant  to  perform.  1  Dyer,  33  a;  3 
Kent,  468. 

And  an  eviction  of  the  tenant  upon  a  title  paramount  to  the  land- 
lord's, will  excuse  the  tenant  from  payment  of  rent.  Idem,  Auct. ; 
also,  Crabb's  Law  of  Real  Property,  t.  p.  152;   Gilb.  Rents,  145. 

By  the  law  of  Scotland,  upon  the  hire  of  property,  a  loss  or  injury 
to  that  property,  which  is  not  occasioned  by  the  fault  or  negligence 
of  the  hirer,  falls  upon  the  owner;  and  the  lessee  is  entitled  to  an 
abatement  of  the  rent  in  proportion  to  any  partial  destruction  of  the 
subject.  1  Bell's  Com.  452.  A  similar-  doctrine  prevails  in  Louis- 
iana. Civil  Code  of  Louisiana,  art.  2667.  And  in  France  by  the  Code 
of  Napoleon.  Code  Nap.  art.  1722.  Pufifendorf?  considers  this  a 
plain  principle  of  natural  law,  founded  in  eternal  justice.  Puff,  book 
5,  ch.  6,  sec.  2.  By  the  civil  law  the  preetor  would  exempt  the  tenant 
from  paying  rent,  or  modify  the  obligation  according  to  equity,  when 
the  property  was  destroyed  by  fire,-  inundation  or  violence,  or  the 
crops  failed  by  bad  seasons.  Dig.  19,  2,  15,  2;  Code,  4,  65,  8.  In  a 
case  in  England,  Brown  v.  Quitter,  Lord  Northman  thought  it  very 
clear,  that  a  man  should  not  pay  rent  for  what  he  cannot  enjoy,  if 
occasioned  by  an  accident  which  he  did  not  undertake  to  meet.  Amb. 
R.  619.  Indeed  the  Courts  of  Equity  in  England  for  a  long  time 
struggled  against  a  contrary  doctrine.  See  Harrison  v.  North,  1  Ch. 
Cas.  83 ;  Steel  v.  Wright,  1  T.  R.  708,  note.  The  question  whether 
a  Court  of  Equity  would  grant  relief  against  a  landlord's  claim  for 

18  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


576  RIGHTS  IN  THE   LAND   OF  ANOTHER  (Part  2 

rent  has  been  set  at  rest  in  England,  in  Hare  v.  Grove,  3  Anst.  R.  687, 
and  Holtzapffel  v.  Baker,  18  Ves.  Jr.  115,  and  Leeds  v.  Chatham,  1 
Simon,  146.    See  also,  Lamott  v.  Sterett,  1  Har.  &  J.  (Md.)  42. 

The  reason  in  'equity  is,  that  in  case  of  the  destruction  of  the  prop- 
erty, the  loss  of  the  rent  must  fall  somewhere,  and  there  is  no  more 
equity  that  the  landlord  should  bear  it  than  the  tenant,  when  the 
tenant  has  expressly  agreed  to  pay  it,  and  when  the  landlord  must 
bear  the  loss  of  the  property  destroyed.  Equity  considers  the  calamity 
mutual.  She  will  not  interfere  to  relieve  against  the  express  con- 
tract of  the  tenant,  So  that,  notwithstanding  the  opinion  of  Puffen- 
dorff,  the  authority  of  the  civil  law,  and  even  some  adjudications  in 
England  and  in  this  country,  we  consider  the  rule  established  as  we 
at  first  laid  it  down. 

As  early  as  the  reign  of  Henry  VHI  this  question  was  mooted  at 
law,  and  in  the  case  of  Taverner  it  was  left  unsettled.  1  Dyer's  R. 
55,  56.  In  the  reign  of  Charles  I,  the  Court  of  King's  Bench  held, 
that  where  the  rentor  had  been  driven  from  the  premises  by  public 
enemies,  viz.  Prince  Rupert  and  his  soldiers,  he  could  not  plead  it  in 
bar  of  the  rent.  Chancellor  Kent,  after  reviewing  the  authorities, 
declares:  "It  is  well  settled  that,  upon  an  express  contract  to  pay 
rent,  the  loss  of  the  premises  by  fire,  or  inundation,  or  external  vio- 
lence, will  not  exempt  the  party  from  his  obligation  to  pay  rent." 
Hallett  V.  WyHe,  3  John.  (N.  Y.)  44;  4  Taunt.  R.  45;  Pollard  v. 
Shaaffer,  1  Dall.  210,  1  L.  Ed.  104;  Fowler  v.  Bott,  6  Mass.  63; 
Wagner  v.  White,  4  Har.  &  J.  (M^d.)  564;  Gates  v.  Green,  4  Paige  (N. 
Y.)  355,  27  Am.  Dec.  68;  3  Kent,  466;  1  Dyer  R.  33;  6  T.  R.  650; 
6  T.  R.  750;  2  Stra.  R.  763;   1  Story,  Com.  sees.  101,  102. 

The  reasons  upon  which  the  decisions  at  law  have  gone,  are,  that 
it  is  competent  for  a  party,  in  his  contract,  to  stipulate  against  pay- 
ment in  case  of  fire,  or  other  casualty,  or  violence ;  and,  having  failed 
to  do  so,  he  cannot  take  advantage  of  his  laches.  The  contract  is  an 
executed  one;  the  tenant  is  in  the  position  of  a  purchaser  of  the 
premises  for  the  term;  he  is  let  into  the  possession,  and  the  landlord 
has  no  right  to  enter  or  in  any  way  molest  him.  And,  as  in  all  other 
express,  unconditional  contracts,  both  parties  must  abide  their  solemn 
act. 

The  rule,  too,  is  not  without  foundation  in  policy.  It  secures,  on  the 
part  of  the  tenant,  that  carefulness  and  vigilance  which  is  necessary 
to  the  safety  of  the  owner's  property  whilst  he  is  out  of  possession, 
and  whilst  it  is  under  the  absolute  control  of  one  who  has  only  a 
temporary  interest  in  it.  If  the  destruction  by  fire  would  excuse  the 
payment  of  rent,  then  might  the  tenant,  so  far  as  .pecuniary  interest  is 
concerned,  become  careless  to  protect  it.  The  owner  would  be  left  to 
rely  upon  the  tenant's  sense  of  moral  obligation,  which  unfortunately 
is  not,  in  all  men,  so  just  or  so  strong  as  to  constrain  them  to  do 
right.     Indeed  there  are  men  to  be  found  base  enough  to  burn  down 


Ch.  6)  RENTS  577 

a  house,  to  get  rid  of  the  payment  of  rent,  if  their  interest  might 
thereby  be  subserved.  The  contrary  of  this  rule  would  therefore  op- 
erate in  restraint  of  renting. 

Let  the  judgment  of  the  Court  below  be  affirmed.^" 


WATTLES  V.  SOUTH  OMAHA  ICE  &  COAL  CO. 

(Supreme  Court  of  Nebraska,  1897.     50  Neb.  251.  69  N.  W.  785,  36  L.  K.  A. 
424,  61  Am.   St.  Rep.   554.) 

[The  plaintiff  leased  to  one  Cotton  a  tract  of  land  with  six  ice 
houses  on  it  adjacent  to  a  lake,  reserving  a  rent  of  $100  per  month. 
Cotton  assigned  his  interest  to  the  defendant,  who  took  possession 
of  the  premises  and  began  using  them  for  the  purpose  of  its  ice  busi- 
ness. During  the  term  the  ice  houses  were  totally  destroyed  by  a  vio- 
lent hurricane.  The  land  with  the  ice  houses  was  worth  $1,200  a 
year  rental;  without  them  it  was  worth  $600  a  year  rental.  The 
plaintiff  claimed  the  rent  as  reserved  by  the  lease;  the  defendant  in- 
sisted that  it  was  entitled  to  an  apportionment  of  the  rent  until  the 
buildings  were  rebuilt  by  the  lessor.  The  case  was  submitted  upon 
an  agreed  statement  of  fact.] 

Ragan,  C.-°  [After  holding  that  the  lessee  was  under  no  obligation 
to  rebuild  the  ice  houses :] 

A  lease  for  real  estate  is  not  a  bargain  and  sale  for  a  given  time  of 
the  lessor's  interest  in  the  leased  premises.  It  is  rather  a  hiring  or 
letting  of  property  for  a  certain  time,  and  for  a  named  consideration ; 
and,  when  a  lessee  covenants  to  pay  rent  for  a  term,  the  consideration 
for  that  covenant  is  his  right  to  the  use  and  occupancy  of  the  thing 
leased.  In  the  covenant  of  a  lessee  to  pay  at  stated  times  certain  sums 
of  money  for  the  rent — that  is,  for  the  privilege  or  the  right  to  use 
and  occupy  the  leased  premises — is  involved  the  condition  that  such 
leased  property  shall  be  in  existence,  and  be  capable  of  being  used  and 
enjoyed  by  the  lessee.  The  promise  to  pay  a  stated  sum  of  money 
as  rent  for  leased  premises  for  a  certain  term  is  based  upon  the  pre- 
sumption that  the  leased  premises  shall  exist  for  the  term.  In  the 
case  at  bar  if  the  lessee  had  been  evicted  frorh  part  of  the  demised 

loAcc:  Monk  v.  Cooper,  2  Str.  763  (1727),  covenant;  Baker  v.  Holtpzaf- 
fel,  4  Taunt.  45  (ISll),  assumpsit  for  use  and  occupation ;  Fowler  v.  Bott, 
6  jMass.  63  (1809) ;  Arbenz  v.  Exley,  52  W.  Va.  476,  44  S.  E.  149,  61  L.  R.  A. 
957  (1903). 

"A  lease  for  years  is  a  sale  of  the  demised  premises  for  the  term.  •  •  • 
The  rent  is,  in  effect,  the  price  or  purchase  money  to  be  paid  for  the  own- 
ership of  the  premises  during  the  term,  and  tbeir  destruction  or  any  de- 
preciation of  their  value,  happening  without  fault  of  the  lessor,  is  no  abate- 
ment of  his  price,  but  entirely  the  loss  of  the  purchaser."  Sewall,  J.,  1» 
Fowler  v.  Bott,  supra. 

See  Felix  v.  Griffiths,  56  Ohio  St.  39,  45  N.  E.  1092  (1897). 

20  Part  of  the  opinions  are  omitted. 

BiG.RlGHTS — 37 


578  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

premises  by  the  holder  of  a  title  paramount  to  that  of  the  lessor's,  the 
lessee  would  be  entitled  to  an  apportionment  of  the  rent.  Tayl.  Landl. 
&  Ten.  §  387,  and  cases  there  cited. 

Under  the  exception  established  to  the  rule,  had  the  entire  leased 
premises  been  washed  away  by  a  flood,  the  relation  of  landlord  and 
tenant  existing  between  the  parties  to  this  suit  would  have  from  that 
moment  ceased.  This  relation  would  not  have  been  terminated  by  the 
act  of  the  parties,  but  by  operation  of  law ;  and  the  lessee  would  have 
been  relieved  from  the  payment  of  rent  accruing  thereafter,  upon 
the  principle  that  tlie  consideration  for  his  promise  to  pay  such  rent 
had  failed.  If  we  look  to  the  subject-matter  of  the  lease  under  con- 
sideration, and  the  language  employed  by  the  parties  in  making  the 
contract,  we  cannot  say  that  either  of  these  parties,  at  the  time  they 
made  this  lease,  had  in  contemplation  the  fact  that  the  leased  premises, 
or  any  part  thereof,  might  be  destroyed  by  a  hurricane.  They  did  not 
contract  with  reference  to  such  a  casualty.  To  use  the  language  of 
McKean,  C.  J.,  in  Pollard  v.  Shaffer,  supra,  had  the  lessor  been  asked 
at  the  time  this  lease  was  made,  "Is  it  your  intention  to  hold  the  lessee 
liable  for  the  entire  rent  reserved  in  case  the  leased  buildings  shall  be 
destroyed  by  cyclone  ?"  he  doubtless  would  have  answered  that  he  had 
never  considered  that  contingency.  If  the  question  had  been  asked 
the  lessee  whether  it  was  his  intention  to  pay  the  entire  $6,000  rent 
even  if  one-half  of  the  leased  property  should  be  destroyed  before  the 
expiration  of  the  term,  it  is  very  probable  that  he  would  have  said 
that  he  had  no  such  an  intention.  Yet,  in  construing  this  contract, 
we  must,  if  possible,  give  effect  to  the  intention  of  the  parties,  notwith- 
standing the  common-law  rule  of  construction.  To  us  it  seems  that 
the  lessor,  in  effect,  said  to  the  lessee :  "I  own  this  tract  of  land,  and 
these  ice  houses.  They  are  in  good  repair.  They  are  fit  for  the  pur- 
poses of  harvesting  and  storing  ice.  I  will  hire  them  to  you  for  five 
years  if  you  will  pay  me  twelve  hundred  dollars  per  year,  and  keep 
the  premises  in  good  repair."  To  this  the  lessee  assented.  This  was 
an  offer  and  a  promise  upon  the  part  of  the  lessor  to  furnish  for  the 
entire  time  the  hired  property.  It  was  a  promise  and  a  covenant  upon 
the  part  of  the  lessee  to  pay  the  monthly  installments  of  rent  for  the 
right  to  use  and  occupy  the  hired  property,  if  it  existed.  But  it  was 
not  a  proposition  on  the  part  of  the  lessor  to  quitclaim  his  right  to 
the  use  and  occupancy  of  the  leased  premises  to  the  lessee  for  five 
years,  in  consideration  of  $6,000  paid  or    to    be    paid    by    the    lat- 

We  reach  the  conclusion  that  the  common-law  rule  of  construction 
under  consideration  is  not  in  force  in  this  state,  and  formulate  the 
rule  as  follows :  Where  a  substantial  portion  of  leased  premises  is 
destroyed  without  the  fault  of  the  lessee,  he  is  entitled  to  an  appor- 
tionment of  the  rent  covenanted  to  be  paid  and  accruing  thereafter, 
in  the  absence  of  an  express  assumption  by  him  of  the  risk  of  such 


Ch.  G)  RENTS  579 

destruction.  The  decree  appealed  from  is  reversed,  and  the  cause  re- 
manded, with  instructions  to  the  district  court  to  enter  a  decree  in  ac- 
cordance with  this  opinion.    Reversed  and  remanded. 

Irvixe:,  C.  (dissenting).  *  *  *  We  think  the  law  is  exactly 
stated  in  a  very  exhaustive  opinion  by  Willard,  J,,  in  Coogan  v.  Park- 
er, 2  S.  C.  255,  to  the  effect  that,  where  there  is  a  substantial  destruc- 
tion of  the  subject-matter  of  the  lease  by  act  of  God  or  the  public 
enemy,  the  tenant  may  elect  to  rescind,  and,  on  surrendering,  shall  be 
discharged  from  the  payment  of  the  rent ;  but  unless  he  elect  to  re- 
scind by  surrender,  or  offer  to  surrender,  he  must  pay  the  rent  accord- 
ing to  his  covenant,  and  that,  in  determining  what  amounts  to  a  sub- 
stantial destruction  of  the  subject-matter,  the  nature  of  the  premises 
and  the  use  which  the  parties  intended  should  be  made  thereof  are  to 
be  considered.  This  doctrine  reconciles  cases  supporting  the  general 
rule  announced  with  those  holding  that  where  a  room  in  a  building  is 
let,  and  the  building  is  destroyed,  the  rent  is  extinguished,  because  in 
such  a  case  there  has  been  a  complete  eviction  or  surrender.  Where, 
however,  there  has  been  only  a  partial  destruction,  and  the  lessee  sees 
fit  to  continue  the  lease,  and  remain  in  possession,  he  must  so  do  ac- 
cording to  its  terms,  and  pay  the  rent  reserved. 

Post,  C.  J.,  and  Ryan,  C,  concur  in  the  foregoing  dissenting  opin- 
ion.-^ 


GRAVES  v.  BERDAN. 

(Court  of  Appeals  of  New  York,  1863.    26  N.  Y.  49S.) 

Action  begun  in  the  City  Court  of  Brooklyn  to  recover  rent.  In 
May,  1856,  defendant  leased  from  plaintiff,  for  a  term  of  years,  rooms 
and  passage-ways  in  the  basement,  and  on  the  second  floor  of  tlie  City 
Central  Hall,  in  Brooklyn,  at  the  yearly  rent  of  $2,700,  payable  quar- 
terly. The  building  was  also  occupied  by  other  lessees  of  apartments. 
On  May  6,  1857,  the  building  was  destroyed  by  fire.  Soon  after,  plain- 
tiff entered  upon  the  land  and  removed  the  ruins  of  the  building,  and 
defendant  removed  tlie  machinery,  brickwork  and  materials  which  he 
had  put  in,  and  plaintiff  afterward  erected  a  building  one  story  high, 
upon  a  portion  of  the  same  ground,  beneath  a  part  of  the  premises 
leased  to  defendant,  but  not  reaching  up  to,  encroaching  upon,  or  in- 
cluding any  part  of  the  space  leased  to  defendant.  After  the  fire  the 
premises  (except  as  above  stated)  remained  vacant,  and  were  not  used 
or  occupied  by  either  party.  The  lease  contained  no  stipulation  on  the 
part  of  either  landlord  or  tenant  for  rebuilding.  The  court  ordered 
judgment  for  plaintiff,  and  on  appeal  to  the  Supreme  Court,  the  judg- 
ment was  reversed  and  plaintiff  appealed. 

21  Ace:     Coogan  v.  Tarker,  2  S.  C.  255,  16  Am.  Rep.  659  (1871). 


580  RIGHTS   IN  THE   LAND   OP   ANOTHER  (Part   2 

RosEKRANS,  J.^^  The  opinion  delivered  by  Justice  Emott  in  this 
case,  in  the  Supreme  Court,  is  a  correct  exposition  of  the  law  applicable 
to  it,  and  for  the  reasons  stated  therein,  the  judgment  should  be  af- 
firmed. The  case  of  Stockwell  v.  Hunter,  11  Mete.  (Mass.)  448,  45 
Am.  Dec.  220,  may  be  added  to  the  authorities  cited  by  Justice  Emott 
to  show  that  a  lease  of  basement  rooms,  or  chambers,  in  a  building 
of  several  stories  in  height,  without  any  stipulation,  by  the  lessor  or 
lessee,  for  rebuilding,  in  case  of  fire^or  other  casualties,  gives  the  lessee 
no  interest  in  the  land  upon  which  the  building  stands,  and  that  if  the 
whole  building  is  destroyed  by  fire,  the  lessee's  interest  in  the  demised 
rooms  is  terminated,  and  the  lessor  may,  after  the  destruction  of  the 
building,  enter  upon  the  soil  and  rebuild  upon  the  ruins  of  the  former 
edifice. 

It  may  be  added  that  at  common  law,  where  the  interest  of  the  lessee 
in  a  part  of  the  demised  premises  was  destroyed  by  the  act  of  God, 
so  that  it  was  incapable  of  any  beneficial  enjoyment,  the  rent  might 
be  apportioned.  In  Rolle's  Abr.  236,  it  is  said  that  if  the  sea  break  in 
and  overflow  a  part  of  the  demised  premises,  the  rent  shall  be  appor- 
tioned, for  though  the  soil  remains  to  the  tenant,  yet,  as  the  sea  is 
open  to  every  one,  he  has  no  exclusive  right  to  fish  there.  A  distinc- 
tion is  taken  between  an  overflow  of  the  land  by  the  sea,  and  fresh 
water,  because,  though  the  land  be  covered  with  fresh  water,  the  right 
of  taking  the  fish  is  vested  exclusively  in  the  lessee,  and  in  that  case 
the  rent  will  not  be  apportioned.  In  the  latter  case  the  tenant  has  a 
beneficial  enjoyment,  to  some  extent,  of  the  demised  premises,  but  in 
the  former  he  has  none,  and  if  the  use  be  entirely  destroyed  and  lost, 
it  is  reasonable  that  the  rent  should  be  abated,  because  the  title  to 
the  rent  is  founded  on  the  presumption  that  the  tenant  can  enjoy  the 
demised  premises  during  the  term.  Com.  Landl.  &  Ten.  218;  Gilb. 
Rents,  182. 

Where  the  lessee  takes  an  interest  in  the  soil  upon  which  a  building 
stands,  if  the  building  is  destroyed  by  fire,  he  may  use  the  land  upon 
which  it  stood,  beneficially,  to  some  extent,  without  the  building,  or  he 
may  rebuild  the  edifice;  but  where  he  takes  no  interest  in  the  soil, 
as  in  the  case  of  a  demise  of  a  basement,  or  of  upper  rooms  in 
the  building,  he  cannot  enjoy  the  premises  in  any  manner  after  the 
destruction  of  the  building,  nor  can  he  rebuild  the  edifice.  He  cannot 
have  the  exclusive  enjoyment  of  the  vacant  space  formerly  occupied 
by  the  demised  rooms.  The  effect  of  the  destruction  of  the  building,  in 
such  a  case,  is  analogous  to  the  effect  of  the  destruction  of  demised 
premises  by  the  encroachments  of  the  sea,  mentioned  in  Rolle's  Abr. ; 
and  the  established  rule  for  the  abatement  or  apportionment  of  the 
rent  should  be  applied  in  the  former  as  well  as  in  the  latter  case. 
The  same  reason  exists  for  its  application  in  both  cases. 

22  Dissenting  opinion  of  Wright,  J.,  is  omitted. 


Ch.  G)  RENTS  581 

But  even  if  the  lessee's  interest  in  the  demised  apartment,  in  a  case 
Hke  this,  was  not  terminated  by  the  total  destruction  of  the  building, 
it  may  be  doubted  whether  the  lessor  could  recover  rent  so  long 
as  he  failed  to  give  to  the  demised  upper  rooms  the  support  necessary 
to  tliem  for  special  enjoyment.  The  rule  seems  to  be  settled  in  Eng- 
land, that  where  a  house  is  divided  into  different  floors  or  stories, 
each  occupied  by  different  owners,  the  proprietor  of  the  ground  floor 
is  bound,  by  the  nature  and  condition  of  his  property,  without  any 
servitude,  not  only  to  bear  the  weight  of  the  upper  story,  but  to  re- 
pair his  own  property  so  that  it  may  be  able  to  bear  such  weight. 
The  proprietor  of  tlie  ground  story  is  obliged  to  uphold  it  for  the 
support  of  the  upper  story.  Humphrey  v.  Brogden,  12  Q.  B.  739;  1 
Eng.  Law  &.Eq.  241 ;  Rowbothem  v.  Wilson,  36  Eng.  Law  &  Eq.  236; 
Harris  v.  Roberts,  6  El.  &  Bl.  643 ;  7  El.  &  Bl.  625.  In  the  case  last 
cited  the  duty  of  such  support  is  recognized  as  a  general  common- 
law  right.  In  a  lease  of  upper  rooms  by  the  owner  of  the  entire 
building,  a  covenant  should  be  implied  on  the  part  of  the  lessor  to  give 
such  support  to  tlie  upper  rooms  as  is  necessary  for  their  beneficial 
enjoyment.  It  has  been  decided  in  this  court  that  the  statute  forbid- 
ding the  implication  of  covenants  in  conveyances  of  real  estate,  does 
not  apply  to  leases  for  years.  Mayor,  etc.,  v.  Maybee,  13  N.  Y.  151, 
64  Am.  Dec.  538;  Vernam  v.  Smith^  15  N.  Y.  332,  333. 

The  judgment  should  be  affirmed. ^^ 

Denio,  C.  J.,  and  Selden,  Balcom  and  Marvin,  JJ.,  concur. 


FITCHBURG  COTTON  MANUFACTORY  CORPORATION 
V.  MELVEN  et  al. 

(Supreme   Judicial   Court   of   Massachusetts,    ISIS.     15   Mass.    268.) 

This  was  an  action  of  covenant  broken,  upon  an  indenture  made  by 
and  between  plaintiffs  and  the  defendants  on  the  10th  of  June,  1816, 
by  which  the  plaintiff's  demised  to  the  defendants  certain  buildings 
and  mill  privileges,  with  tools  and  machinery  in  the  buildings,  for  the 
manufacture  of  woollen  cloths,  for  the  term  of  three  years  from  the 
date  of  the  indenture,  "yielding  and  paying  therefor  the  rent  of  $275 

28 Ace:  McMillan  v.  Solomon.  42  Ala.  356,  94  Am.  Dec.  654  (186S).  Com- 
pare Izon  V.  Gorton,  5  Bing.  N.  C.  501  (1S.39) ;  Taylor  v.  Caldwell,  3  B.  &  S. 
826  (1S6.3) ;  Roberts  v.  Lynn  Ice  Co.,  187  Mass.  502,  73  N.  E.  523  (11K)5). 

If  after  such  destruction  the  lessee  attempts  to  occupy  the  same  space,  he 
may  be  evicted  therefrom.  Winton  v.  Cornish,  5  Ohio,  477  (1832);  Harring- 
ton V.  Watson,  11  Or.  143,  3  Pac.  173,  50  Am.  Rep.  465  (1883). 

A.  executed  to  B.  a  "lease"  of  "the  riv*er  front  and  landing  in  front  ol" 
certain  lots  owned  by  A.  in  Memphis.  A  flood  in  the  river  washed  away  all 
of  A.'s  laud  but  a  narrow  strip,  wholly  destroyed  the  landing,  and  rendered 
the  formation  of  a  landing  or  the  mooring  of  boats  impossible.  Held,  B.  is 
no  longer  liable  for  the  rent  reserved.  Waite  v.  O'Neil,  76  Fed.  408,  22  C. 
O.  A.  248,  34  L.   R.  A:  550   (189G). 


5S2  RIGHTS   IN  THE   LAND   OP   ANOTHER  (Part  2 

annually  during  the  term  aforesaid."     The  breach  was  alleged  in  the 
non-payment  of  one  year's  rent,  due  on  the  10th  of  June,  1817. 

The  defendants  pleaded,  in  bar  that,  before  the  making  of  the  in- 
denture, the  plaintiffs  had  mortgaged  all  the  demised  premises,  ex- 
cepting tools  and  machinery,  to  one  Edmund  Gushing,  to  secure  the 
payment  of  their  promissory  note  to  him;  and  that  on  the  2d  of 
November,  1816,  the  said  note  being  tlien  due  and  unpaid.  Gushing 
entered  for  the  condition  broken,  and  evicted  the  defendants.  The 
same  facts  were  pleaded  in  a  second  plea,  in  bar  of  damages,  ex- 
cept for  a  ratable  and  meet  sum  for  the  rent  of  the  tools  and  ma- 
chinery; and  in  a  .third  plea,  in  bar  of  damages  for  the  rent  of  that 
part  of  the  demised  premises  which  had  been  mortgaged,  for  any 
time  after  the  2d  of  November,  1816.  The  plaintiffs  4eniurred  to 
each  of  these  pleas ;  and  the  defendants  joined  in  demurrer. 

Jackson,  J.  We  are  all  of  opinion  that  the  first  plea  in  bar  is 
good,  and  that  the  plaintiffs  are  not  entitled  to  recover  anything  in 
this  action.  If  the  rent  had  been  payable  quarterly,  the  sum  due  for 
the  first  quarter  might  have  been  recovered,  notwithstanding  the  sub- 
sequent eviction;  but  as  the  tenants  were  evicted  before  the  first 
day  of  payment,  no  rent  can  be  recovered  upon  the  indenture. 

The  result  is  not  influenced  by  the  circumstance  that  Gushing,  who 
evicted  the  defendants,  was  a  mortgagee.  It  is  enough  that  he  en- 
tered under  a  title  paramount  to  that  of  the  lessors.  If  the  lease  had 
been  made  before  the  mortgage.  Gushing  would  have  been  assignee  of 
the  reversion,  and  in  that  character  entitled  to  all  the  rents  payable  by 
force  of  the  indenture,  excepting  only  such  as  might  have  been  paid  by 
the  lessees  before  notice  of  the  assignment.  He  could  not,  in  that  case, 
have  evicted  the  tenants,  but  would  have  held  subject  to  their  lease. 
But  when  the  lease  is  made,  as  in  this  case  after  the  mortgage,  it 
does  not  bind  the  mortgagee,  nor  in  any  manner  affect  his  right.  There 
is  no  privity  between  him  and  the  lessee,  and  no  right  in  him  to  de- 
mand the  rent  reserved  by  the  lease.  He  may  consider  the  lessee 
as  a  trespasser  or  a  disseisor,  and  may  maintain  an  ejectment  or  writ 
of  entry  against  him.  The  lessee  stands  in  the  situation  of  the  mort- 
gagor ;  and  as  the  mortgagee  cannot  recover  the  back  rents  against  the 
mortgagor,  when  he  is  left  in  possession,  it  seems  to  be  the  better  opin- 
ion that  he  could  not  recover,  in  the  like  case,  against  the  lessee  of  the 
mortgagor. 

It  may  often  happen  that  the  lessee  will  suffer  a  loss,  by  being  evict- 
ed, that  would  overbalance  the  advantage  of  holding  the  premises  for 
a  part  of  the  term.  In  such  a  case,  equity  would  concur  with  the 
rule-  of  law  which  prohibits  an  apportionment  of  the  rent.  But  if  the 
lessee  has  derived  a  substantial  .benefit  from  the  use  of  the  estate  de- 
mised, although  he  does  not  hold  it  for  the  whole  term,  equity  would 
require  that  he  should  pay  a  quantum  meruit.  If  the  lessors,  in  the 
present  case,  have  any  claim  on  that  ground,  their  only  remedy  must 
be  an  action  of  assumpsit;    as  in  the  analogous  case  of  a  charter- 


Ch.  6)  RENTS  583 

party  of  affreightment.  In  that  case,  when  the  ship  is  prevented  by  the 
perils  of  the  sea  from  carrying  the  goods  to  the  cfestined  port,  and 
they  are  received  by  the  owner  at  an  intermediate  place,  the  latter  is 
not  liable  to  an  action  of  covenant  on  the  charter-party ;  but  it  was 
thought,  in  a  case  of  that  kind,  that  he  might  be  held,  in  an  action 
of  assumpsit,  to  pay  a  reasonable  compensation  for  the  services  of 
the  ship  owner,  as  far  as  they  were  performed,  and  so  far  as  he  was 
benefited  by  them. 

Some  doubts  have  arisen,  whether  the  plaintiffs  may  not  recover 
in  this  action  for  the  rent  or  use  of  the  tools  and  machinery,  which 
were  not  included  in  the  mortgage  to  Gushing.  When  a  part  of  the 
land  is  evicted,  and  the  residue  is  enjoyed  by  the  lessee,  it  is  a  dis- 
charge only  in  proportion  to  the  value  of  the  land  evicted.  But  in  the 
case  at  bar,  the  tools  and  machinery  cannot  be  considered  as  a 
distinct,  substantial  part  of  the  estate  demised.  They  are  in  the  nature 
of  mere  appurtenances  to  the  mill  and  the  buildings,  and  to  be  used 
in  them  for  the  manufacture  of  woollen  cloth.  They  would  apparently 
have  been  of  no  use  to  the  defendants,  unless  in  connection  with  the 
buildings ;  and  tlie  eviction  of  these  latter  seems,  therefore,  to 
amount  to  an  eviction  of  the  tools  and  machinery  likewise.  The  plain- 
tiffs may  probably  recover  a  reasonable  compensation  for  the  loan 
or  use  of  the  tools  and  machinery,  in  an  action  of  assumpsit;  but  they 
.cannot  recover  it  in  this  action. 

Per  Curiam.    Defendants'  plea  in  bar  good.^* 


SEABROOK  V.  MOYER. 
(Supreme  Court  of  Pennsylvania,  1S79.    88  Pa.  417.) 

Mercur,  J.^°  This  was  an  action  of  debt  for  the  rent  of  certain 
premises  demised  by  plaintiff  to  defendant.  The  term  was  for  three 
years  from  January  1st,  1874,  at  an  annual  rental  of  $3,000  payable 
monthly.  The  narr.  contained  two  counts,  one  on  a  demise  at  $250  a 
month,  the  other  for  use  and  occupation.  The  premises  leased  consist- 
ed of  a  building  fronting  on  Market  street,  with  a  right  of  way  over  an 
alley,  of  three  feet  two  inches  in  width,  between  the  leased  building 

24ACC.:     Friend  v.  Oil  Well  Supply  Co.,  165  Pa.  652,  30  Atl.  1134   (1895). 

A."  leased  to  B.,  with  a  covenant  and  condition  against  using  the  premises 
for  purposes  forbidden  by  the  insurance  policies.  B.  subleased  to  C,  who 
subleased  to  D. ;  both  subleases  having  the  same  provisions  as  the  head  lease. 
D.  violated  the  provisions.  A.  brought  ejectment  against  B.,  C,  and  D.,  and 
recovered  judgment.  D.  thereupon  abandoned  the  premises,  leaving  the  key 
with  C.  In  an  action  by  C.  against  D.  for  rent  subsequently  accruing,  held, 
the  eviction  is  a  defense.  Home  Life  Ins.  Co.  of  Brooklyn  v.  Sherman,  46 
N.  Y.  370   (1871). 

See,  also,  Leopold  v.  Judson,  75  111.  536  (1874) ;  Russell  v.  Fabyan.  27  N. 
H.  529  (1853) ;  28  N.  H.  543,  Gl  Am.  Dec.  629  (1854) ;  Giles  v.  Comstock,  4  N. 
Y.  270,  53  Am.  Dec.  374   (1850). 

26  The  statement  of  facts  is  omitted. 


5S4  RIGHTS   IN   THE   LAND   OP  ANOTHER  (Part  2 

and  the  adjoining  property.  The  defendant  took  possession  and  paid 
the  rent  up  to  1st  February,  1875.  In  that  month  the  adjoining  owner 
began  to  build,  and  in  so  doing  he  constructed  a  party-wall  on  eleven 
inches  of  his  alley-way,  thus  reducing  its  width  and  also  the  width  of 
the  rooms  in  the  second  and  third  story  of  the  building.  This  taking 
by  the  adjoining  owner  was  by  virtue  of  a  written  agreement  entered 
into  between  him  and  the  plaintiff  before  the  execution  of  the  lease 
between  plaintiff  and  defendant.  By  the  terms  of  that  agreement 
the  plaintiff  and  adjoiner  had  each  relinquished  to  the  other  the  right 
of  way  over  the  alley.  In  so  far  as  the  defendant  was  not  deprived 
of  the  premises  by  this  interference  of  the  adjoining  owner,  he  re- 
mained in  possession  of  the  building,  but  refused  to  pay  any  rent, 
claiming  it  to  be  such  an  eviction  as  discharged  him  from  all  obligation 
to  pay.  The  plaintiff  claimed  the  defendant  remained  liable  on  a 
quantum  meruit  for  use  and  occupation.  The  court  below  ordered  a 
judgment  of  nonsuit  to  be  entered.    That  is  assigned  for  error. 

It  is  a  well-settled  rule  that  if  a  landlord  wrongfully  dispossesses  his 
tenant  of  any  portion  of  the  demised  premises  the  rent  for  the  whole 
is  thereby  suspended.  In  the  present  case,  the  plaintiff  committed  no 
act  after  possession  taken  under  the  lease,  by  which  his  tenant  was  de- 
prived of  any  part  of  the  demised  premises.  On  the  contrary  the  evi- 
dence shows  that  he  tried  to  prevent  the  eviction.  His  offence  con- 
sisted in  demising  premises  to  the  defendant  to  a  portion  of  which  he 
had  no  title  at  the  time.  The  eviction  of  the  defendant  was  by 
virtue  of  a  title  paramount  to  the  title  of  his  landlord.  It  matters 
not  that  the  plaintiff  previously  held  it.  At  the  time  the  lease  was 
executed  and  the  relation  of  landlord  and  tenant  between  the  parties 
was  created,  the  outstanding  title  of  the  adjoiner  was  as  superior  to 
the  title  of  the  plaintiff  as  if  he  had  never  held  it.  If  the  defendant 
had  been  evicted  by  paramount  title  from  the  whole  premises,  he  would 
have  been  discharged  from  the  payment  of  the  whole  rent,  after  that 
time.  But  an  eviction  by  such  title,  from  a  part  only  of  the  demised 
premises,  when  the  tenant  continues  in  possession  of  the  remaining 
part,  using  and  enjoying  it,  does  not  work  a  suspension  of  all  sub- 
sequent rent.  He  remains  liable  to  the  payment  of  such  proportion 
of  the  rent  as  the  value  of  the  part  retained  bears  to  the  whole.  On 
having  been  evicted  from  a  part  he  might  have  removed  from  the  resi- 
due and  thereby  wholly  relieved  himself  from  the  payment  of  future 
rent ;  failing  to  do  so,  he  became  liable  to  a  just  apportionment.  'This 
conclusion  is  fully  sustained  in  Taylor  on  Landlord  and  Tenant,  §  378, 
and  the  English  and  American  cases  there  cited. 

Our  own  cases  recognize  the  same  rule  when  the  landlord  conveys 
a  part  of  the  demised  premises  during  the  term  and  possession  of  the 
tenant,  and  the  vendee  has  entered  and  evicted  the  tenant  from  the 
part  thus  conveyed.  By  retaining  possession  of  the  remaining  part  he 
becomes  liable  to  pay  for  the  use  of  the  portion  thus  retained.  It  is 
held  not  to  be  such  a  wrongful  eviction  bv  the  landlord  as  to  release  the 


Ch.  G)  EE.NTS  585 

tenant  from  paying  a  just  compensation  for  that  which  he  continues  to 
enjoy:  Reed  v.  Ward,  22  Pa.  144;  Linton  v.  Hart,  25  Pa.  193,  64 
Am.  Dec.  691.  The  learned  judge  therefore  erred  in  ordering  a 
judgment  of  nonsuit. 

Judgment  reversed  and  a  procedendo  awarded.** 


PARKS  V.  CITY  OF  BOSTON. 
(Supreme  Judicial  Court  of  Massachusetts,  1834.    15  Pick.  198.) 

This  was  a  complaint  presented  to  the  Court  of  Common  Pleas, 
praying  that  a  jury  might  be  empannelled  to  assess  the  damages  sus- 
tained by  the  complainant  in  consequence  o£  the  taking  of  313  square 
feet  of  land  by  the  mayor  and  aldermen  of  Boston,  on  July  13,  1829, 
for  the  purpose  of  widening  Doane  street  in  that  city. 

The  respondents  admitted  the  taking  of  the  land,  but  traversed  the 
allegation  in  the  complaint,  that  the  complainant  was  damaged  in  his 
property  thereby,  and  tendered  an  issue  thereon,  which  was  join- 
ed.    *     *     * 

In  the  course  of  the  trial,  the  respondents,  in  order  to  show  that  the 
complainant  was  not  entitled  to  recover  the  full  value  of  the  land 
at  the  time  when  it  was  taken,  and  that  they  were  liable  to  pay  one 
Enoch  Patterson,  who  had  preferred  a  complaint  against  them,  for  the 
loss  of  the  use  of  the  land  taken,  from  the  time  when  it  was  taken 
until  January  1,  1832,  proved  the  execution  of  a  lease  of  the  land 
taken  and  of  other  lands,  which  was  made  by  the  complainant  to  Pat- 
terson before  the  taking  of  the  land,  by  virtue  of  which  lease  Patter- 
son was  entitled  to  hold  such  lands  for  the  term  of  three  years  from 
January  1,  1829,  at  an  annual  rent  of  $725 ;  and  thereupon  they  con- 
tended, that,  inasmuch  as  the  complainant  would  be  entitled  to  recover 
such  rent  of  Patterson  during  the  continuance  of  the  lease,  a  deduc- 
tion should  be  made  by  the  jury  on  this  account,  from  the  value  of  the 
land.  The  judge  instructed  the  jury,  that  part  of  the  land  leased 
having  been  taken  by  law  for  the  use  of  the  public,  without  the  consent 
of  the  complainant  or  Patterson,  the  lease  was  thereby  determined ; 

2«Acc.:  Stevenson  v.  Lombard,  2  East.  ."iTu  (1S02);  Fifth  Ave.  Bldg.  Co 
V.  Kernochan,  221  N.  Y.  370,   117  N.  E.,579   (1917). 

'The  question  is,  "Whether  the  rent  be  apportionablc  in  this  action  of 
covenant  by  the  lessor  against  the  assignee  of  the  lesseeV  It  clearly  is  so 
in  an  action  of  debt  or  upon  an  avowry  in  replevin,  by  all  the  authorities ; 
and  the  only  question  is,  Whether  it  be  so  in  co\enant?  In  covenant  as  be- 
tween lessor  and  lessee,  where  the  action  is  personal,  and  upon  a  mere  privi- 
ty of  contract,  and  on  that  account  transitory  as  any  other  personal  con- 
tract is,  the  rent  is  not  apportionable."  Stevenson  v.  Lombard,  2  East,  579 
(1802). 

Compare  Swansea  v.  Thomas,  L.  R.  10  Q.  B.  D.  48,  52  (1S82).  See  Toston 
v.  Jones.  37  N.  C.  3.^0.  38  Am.  Dec.  6S3   (1S42). 

As  to  the  method  of  computing  proportionate  values,  see  Tomlinson  v.  Dav, 
2  Brod.  &  B.  680  (1821) ;  Carter  v.  Burr,  .39  Barb.   (N.  Y.)  59  (1862). 


586  RIGHTS  IN  THE  LAND   OP  ANOTHER  (Part  2 

that  the  complahiant  could  not  compel  Patterson  to  pay  such  rent; 
that  the  city  would  not  be  liable  to  pay  Patterson  any  damages  on  ac- 
count of  his  having  covenanted  to  pay  the  rent  to  the  complainant; 
and  that  the  complainant  was  entitled  to  recover  against  the  city  the 
full  value  of  the  land  taken,  as  if  it  had  not  been  leased. 

To  this  ruling  the  respondents  excepted.     *     *     * 

Shaw,  C.  J.^^  *  *  *  But  I  presume  this  supposed  effect  of  de- 
termining the  term  is  thought  to  result  from  the  other  branch  of  this 
opinion,  which  is,  that  by  the  act  of  thus  taking  away  a  part  of  the 
leased  estate,  the  tenant  would  be  exempted  from  the  payment  of  the 
reserved  rent,  and  therefore  the  landlord  ought  to  receive  an  equivalent 
in  his  compensation  from  the  public.  If  such  were  the  effect,  the  in- 
ference would  undoubtedly  be  correct. 

But  upon  what  principle  can  it  be  maintained,  that  a  lessee  under 
such  circumstances  would  be  exempted  from  the  payment  of  the  stip- 
ulated rent?  The  lessee  takes  his  term,  just  as  every  other  owner  of 
real  estate  takes  title,  subject  to  the  right  and  power  of  the  public 
to  take  it  or  a  part  of  it,  for  public  use,  whenever  the  public  necessity 
and  convenience  may  require  it.  Such  a  right  is  no  incumbrance ; 
such  a  taking  is  no  breach  of  the  covenant  of  the  lessor  for  quiet  en- 
joyment. The  lessee  then  holds  and  enjoys  exactly  what  was  granted 
him,  as  a  consideration  for  the  reserved  rent ;  which  is,  the  whole 
use  and  beneficial  enjoyment  of  the  estate  leased,  subject  to  the  sov- 
ereign right  of  eminent  domain  on  the  part  of  the  public.  If  he  has* 
suffered  any  loss  or  diminution  in  the  actual  enjoyment  of  this  use, 
it  is  not  by  the  act  or  sufferance  of  the  landlord ;  but  it  is  by  the  act 
of  the  public,  against  whom  the  law  has  provided  him  an  ample  remedy. 
If  he  is  compelled  to  pay  the  full  compensation  for.  the  estate  actual- 
ly diminished  in  value,  this  is  an  element  in  computing  the  compensa- 
tion which  he  is  to  receive  from  the  public.  In  this  view,  it  becomes 
unimportant,  in  settling  the  principle  we  are  now  discussing,  whether 
the  taking  for  public  use  diminishes  the  leased  premises,  little  or  much, 
in  quantity  or  in  value ;  all  this  will  be  taken  into  consideration  in  as- 
sessing the  damages,  which  the  lessee  may  sustain. 

But  it  was  contended  on  the  part  of  the  complainant,  and  authori- 
ties-were cited  to  show,  that  where  a  covenant  is  to  do  any  act,  law- 
ful at  the  time  the  covenant  is  made,  but  which  becomes  unlawful 
afterwards,  the  covenantor  is  excused  from  the  performance.  This 
principle  is  correct,  but  I  cannot  perceive  that  it  has  any  application 
to  the  present  case.  For  instance,  if  one  should  covenant  with  the 
owner  of  a  lot  of  land  to  build  a  warehouse  upon  it,  at  a  future  time, 
and  before  the  time  a  street  should  be  laid  over  it,  so  that  it  would 
become  unlawful  to  build  upon  it,  the  covenant  would  be  repealed ;  and 
it  would  probably  follow,  that  the  corresponding  covenant  on  the  other 
side  to  pay  for  such  building  would  be  considered  repealed  also.     But 

27  The  statement  of  facts  is  abridged  and  part  of  tbe  opioion  is  omitted. 


Ch.  6)  RENTS  587 

nothing  renders  It  unlawful  for  the  tenant  in  the  present  case,  to  use, 
occupy  and  enjoy  the  leased  premises,  subject  only  to  the  public  ease- 
ment. Toi  the  extent  of  the  property  not  taken  he  has  still  the  bene- 
ficial use;  if  its  value  is  diminished  by  the  taking,  to  that  extent  he 
has  his  compensation  from  the  public,  and  thus  he  has  still  an  equiva- 
lent for  his  rent  paid. 

Upoh  these  grounds,  we  are  of  opinion,  that  the  lease  from  the  com- 
plainant to  Patterson  was  not  dissolved  by  the  act  or  taking  part  of 
the  leased  premises  to  widen  a  public  street ;  that  Patterson,  notwith- 
standing such  taking,  continued  liable  to  pay  the  reserved  rent,  during 
the  term  which  remained  unexpired  ;^^  and  that  the  jury  should  have 
been  instructed  to  take  that  fact  into  consideration,  in  estimating 
the  damages  which  the  complainant  had  sustained,  by  such  tak- 
ing.    *     *     * 

The  result  is,  that  the  exceptions  taken  by  the  city  are  sustained, 
that  the  verdict  in  the  writ  below  is  set  aside,  and  that  the  cause  is  to 
be  tried  at  the  bar  of  this  Court, 


BIDDLE  v.  HUSSMAN  et  al. 
(Supreme  Court  of  Missouri,  1S56.    23  Mo.  597.) 

[The  plaintiff  owned  a  lot  in  the  city  of  St.  Louis.  He  leased  this 
to  the  defendant  for  a  term  of  years,  reserving  rent.  During  the  term, 
part  of  the  land  was  condemned  by  the  city  of  St.  Louis  and  appro- 
priated to  public  uses.  The  plaintiff  brought  action  for  the  rent  re- 
served, accruing  after  the  condemnation  and  appropriation,  and  a. 
judgment  was  obtained  below  for  the  whole  rent.  The  defendant  ap- 
pealed.] 

Leonard,  j.  *  *  *  The  judgment  must  be  reversed  and  an- 
other trial  had.  The  question  will  then  come  up  as  to  the  effect  of  the 
subsequent  condemnation  of  the  lot  upon  the  respective  rights  of  the 
landlord  and  tenant.  The  interests  of  both  these  parties  in  the  lot  were 
equally  within  the  protection  of  our  constitution.  Both  were  owners 
within  the  meaning  of  the  statute  authorizing  the  condemnation,  so 
that  the  interest  of  neither  could  be  taken  without  a  just  compensa- 
tion. If  the  rights  of  the  parties  had  remained  as  they  were  originally 
before  the  making  of  the  deed  to  the  city,  and  the  whole  of  the  leased 
premises  had  been  applied  to  the  pubhc  use,  we  think  the  condemna- 
tion would  have  divested  all  rights  of  private  property  in  the  lot,  and 
have  thus  extinguished  the  whole  rent  issuing  out  of  it.^*     The  con- 

2 8 Ace:  Stubbings  v.  Village  of  Evanston,  130  111.  37,  26  N.  E.  577,  11  L. 
R.  A.  839,  29  Am.  St.  Rep.  300  (1S91) ;  Gluck  v.  Baltimore,  81  Md.  315,  32 
Atl.  515,  48  Am.  St.  Rep.  515   (1895). 

2  9  Ace. :  Corrigan  v.  City  of  Chicago,  144  111.  537,  33  N.  E.  746,  21  L.  R.  A.  212 
(1893) ;  O'Brien  v.  Ball,  119  Mass.  28  (1874) ;  Lodge  v.  Martin,  31  App.  Div. 
13,  52  N.  Y.  Supp.  385  (1898).  Contra:  Foote  v.  City  of  Cincinnati,  11  Ohio, 
408,  38  Am.  Dec.  737  (1842). 


588  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

demnation  was  a  reassumption  by  the  state  of  her  original  title  to  the 
land  under  her  right  of  eminent  domain.  It  was  a  revocation  of  the 
landlord's  title,  and  may  well  be  considered  as  extinguishing  all  rights 
depending  upon  the  continuance  of  that  title.  This  revocation  was 
effected  by  law  without  the  fault  of  either  party,  and  could  only  be 
upon  a  just  compensation  to  both  parties,  according  to  their  respective 
rights  in  the  property.  The  landlord  was  entitled  to  the  present  value 
of  his  reversion,  and  of  the  rents  that  were  to  become  due  to  him  dur- 
ing the  continuance  of  the  term,  and  the  tenant  to  the  present  value 
of  his  leasehold  interest  over  and  above  the  rents  payable  during  the 
term.  The  public,  upon  tlie  resumption  of  the  land,  must  pay  the 
present  value  of  the  property,  which  is  to  be  distributed  between  the 
landlord  and  tenant  according  to  their  respective  interests.  Ellis  v. 
Welch,  6  Mass.  250,  4  Am.  Dec.  122.  In  the  present  case,  however, 
only  part  of  the  lot  was  taken,  and  the  effect  of  this  partial  applica- 
tion, we  think,  was  to  apportion  the  rent,  extinguishing  it  in  respect  to 
the  part  taken,  and  leaving  it  subsisting  as  to  the  residue.  This  was 
so  held  in  the  case  of  Cuthbert  v.  Kuhn,  3  Whart.  (Pa.)  357,  31  Am. 
Dec.  513,  although  a  different  view  of  the  matter  seems  to  have  pre- 
vailed in  Parks  v.  Boston,  15  Pick.  198.  We  concur,  however,  in  the 
last  case,  so  far  as  it  holds  that  the  condemnation  of  part  of  the  leased 
premises  does  not  extinguish  the  whole  rent;  and  that  seems  to  have 
been  the  matter  to  which  the  attention  of  the  court  was  mainly  di- 
rected, although  the  case,  perhaps,  may  be  considered  as  laying  down 
the  doctrine  that  in  such  a  case  there  can  be  no  apportionment,  but 
that  the  tenant  must  continue  liable  under  his  personal  contract  to 
pay  the  whole  rent,  and  be  indemnified  against  this  continuing  liabil- 
ity in  an  additional  compensation  to  be  allowed  him  by  the  public  on 
that  account.  The  condemnation  of  the  whole  lot,  it  must  be  adrhitted, 
discharges  the  lot  from  the  rent,  so  that  the  rent  ceases  thereafter  to 
issue  out  of  the  land.  If  the  rent  must  be  considered  as  still  sub- 
sisting on  account  of  the  personal  obligations  of  the  original  lessee  to 
pay  it,  the  lessor,  in  case  of  the  insolvency  of  the  fonner,  might  just- 
ly complain  that  he  had  been  deprived  of  his  rights  without  compen- 
sation. And  so,  in  like  manner,  we  think  the  consideration  [con- 
demnation] of  part  of  the  lot  discharges  it  from  a  proportionate  part 
of  the  rent,  and  extinguishes  it  accordingly.^"  This  apportionment 
must  be  made  by  the  jury,  who  will  determine  whether  any  thing,  and 
how  much,  is  due,  and  have  reference,  in  making  their  estimate,  to 
the  real  value  of  what  is  left  to  the  tenant,  and  not  to  the  quantity ; 
and  the  plaintiff  will  recover  accordingly.  Gilbert  on  Rents, 
190.  *  *  * 
Judgment  reversed.'* 

»o  Ace. :  Board  of  Levee  Cora'rs  v.  Johnson,  66  Miss.  248,  6  South.  199  (1889). 
See  Folts  V.  Huntley,  7  Wend.   (N.  Y.)  210  (1831). 

31  Compare  Rhode  Island  Hospital  Trust  Co.  v.  Hayden,  20  R.  I.  544,  40 
Atl.  421,  42  h.  R.  A.  107  (1898). 


Ch.  G)  RENTS  589 


LAWRENCE  v.  WHITE. 

(Supreme  Court  of  Georgia,  1909.     131  Ga.  840,  63  S.  E.  631,    i9  L.  R.  A. 
"  [N.  S.]  966,  15  Ann.  Gas.  1097.) 

James  B.  White  leased  to  Bryan  Lawrence  a  hotel  in  the  city  of  Au- 
gusta known  as  the  "Albion  Hotel"  for  the  term  of  five  years,  to 
begin  on  the  opening  of  the  hotel  for  the  reception  of  guests  not  later 
than  April  20,  1901,  with  privilege  of  renewal.  The  stipulated  rent 
was  $10,000  per  annum,  payable  in  monthly  installments  of  $833.33. 
The  only  portions  of  the  written  contract  of  lease  which  need  be  set 
out  are  as  follows:  "The  leased  premises  consist  of  the  corridor,  of- 
fice, bar,  barber  shop,  cigar  stand,  billiard  room,  on  the  first  floor. 
*  *  *  "  The  lease  was  renewed  after  the  first  term  for  five  years 
more. 

On  August  6,  1907  (Laws  1907,  p.  81),  an  act  passed  by  the  Legis- 
lature was  approved  prohibiting  the  manufacture  or  sale  of  alcoholic, 
spirituous,  malt,  or  intoxicating  liquors  in  the  state  after  the  expira- 
tion of  that  year.  After  this  act  became  operative,  the  lessee  claimed 
that  he  was  entitled  to  an  apportionment  and  reduction  of  the  rent,  be- 
cause of  his  inability  to  further  conduct  the  business  of  a  bar  in  the 
hotel.  *  *  *  The  lessor  declined  to  allow  any  abatement  in  the 
rent,  and  sued  out  a  distress  warrant  for  the  past-due  rent  at  the 
monthly  rate  stipulated,. and  also  a  dispossessory  warrant,  for  the  pur- 
pose of  evicting  the  lessee  from  the  premises  on  account  of  the  fail- 
ure and  refusal  to  pay  the  rent  without  abatement.  The  lessee  there- 
upon filed  an  equitable  petition,  claiming  an  abatement  of  the  rent  to 
be  made  in  proportion  of  the  diminution  in  rental  value  because  of  the 
legal  impossibility  of  operating  a  barroom  on  the  premises,  and  pray- 
ing that  the  lessor  be  enjoined  from  prosecuting  the  actions  at  law 
commenced  by  him,  and  for  process  and  general  relief.  *  *  *  Qn 
the  hearing  of  the  application  for  interlocutory  injunction  it  was  de- 
nied, and  Lawrence  excepted. 

Lumpkin,  J.*^  1.  The  question  in  this  case  is  whether  the  lessee 
of  a  hotel,  including  a  barroom,  was  entitled  to  a  reduction  or  propor- 
tional abatement  of  the  agreed  rental  because  during  the  term  of  the 
lease  the  Legislature  of  the  state  enacted  a  law  prohibiting  the  sale  of 
alcoholic,  spirituous,  malt,  or  intoxicating  liquors,  and  thus  the  bar 
could  no  longer  be  used  for  that  purpose.  The  adjudicated  cases  with 
unusual  uniformity  answer  this  question  in  the  negative,  though  they 
do  not  all  give  the  same  reasons  for  the  ruling. 

It  has  been  very  generally  held  that  the  enforcement  of  public  offi- 
cers of  restrictions  or  conditions  in  regard  to  the  use  of  leased  prem- 
ises does  not  amount  to  an  eviction  of  the  tenant.  *  *  *  [The  court 
here  cited  and  discussed  Taylor  v.  Finnigan,  189  Mass.  568,  76  N.  E. 

«2  The  statement  of  facts  Is  abridged  and  part  of  the  opinion  is  omitted. 


590  '  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

203,  2  L.  R.  A.  (N.  S.)  973;  Abadie  v.  Berges,  41  La.  Ann.  281,  6 
South.  529;  Teller  v.  Boyle,  132  Pa.  56,  18  Atl.  1069;  Baughman  v. 
Portman  (Ky.)  14  S.  W.  342 ;  Houston  Ice  &  Brewing  Co.  v.  Keenan, 
99  Tex.  79,  88  S.  W.  197 ;  Miller  v.  Maguire,  18  R.-I.  770,  30  Atl.  966; 
Kerley  v.  Mayer,  10  Misc.  Rep.  718,  31  N.  Y.  Supp.  818;  Newby  v. 
Sharpe,  L.  R.  8  Ch.  Div.  39;  Nicholls  v.  Byrne,  11  La.  170;  Gazlay 
V.  Williams,  210  U.  S.  41,  28  Sup.  Ct.  687,  52  L.  Ed.  950;  Fleming 
V.  King,  100  Ga.  449,  28  S.  E.  239;  Fitzgerald  v.  Witchard,  130  Ga. 
552,  61  S.  E.  227,  16  L.  R.  A.  (N.  S.)  519.] 

It  was  urged  that  the  lease  now  involved  specifically  named  the  bar, 
and  that  its  operation  was  a  material  consideration  entering  into  the 
lease  of  the  hotel.  *  *  *  The  mere  use  of  the  word  "bar"  in  the 
lease  did  not  amount  to  a  covenant  or  warranty  on  the  part  of  the 
landlord  that  the  law  would  continue  to  allow  the  tenant  to  conduct 
the  business  of  keeping  a  bar  and  selling  liquors,  or  a  covenant  by 
the  tenant  that  he  would  do  so.     *     *     * 

It  was  argued  that  as  to  the  bar  the  tenancy  was  terminated;  and 
cases  were  cited  to  the  effect  that  where  an  apartment  in  a  building 
is  rented,  and  the  building  is  destroyed,  the  tenancy  ceases  (Gavan  v. 
Norcross,  117  Ga.  356,  360,  43  S.  E.  771);  also,  to  sustain  the  con- 
tention that,  if  there  is  a  substantial  destruction  of  the  subject-matter 
of  the  lease  by  the  act  of  God  or  the  public  enemy,  rent  ceases  (9  Cyc. 
631) ;  that  eviction  by  the  landlord  results  in  suspension  of  rent,  evic- 
tion by  another  from  a  portion  of  the  premises,  under  paramount  ti- 
tle, entitles  the  lessee  to  an  apportionment  of  rent  (24  Cyc.  1186-7); 
that,  according  to  some  authorities,  if  part  of  the  premises  are  taken 
by  condemnation  under  the  power  of  eminent  domain,  the  rent  may 
be  apportioned,  and  that  to  the  general  rule  that  a  party  to  a  contract 
is  not  discharged  by  subsequent  impossibility  of  performance  there 
is  an  exception  where  the  performance  becomes  impossible  by  law  (9 
Cyc.  629-631 ;  Civ.  Code  1895,  §  3725).  These  propositions,  as  ab- 
stract rules,  do  not  require  discussion.  They  do  not  aid  the  plaintiff  in 
error,  because  they  do  not  apply  to  the  facts  of  this  case.  Neither 
the  leased  premises  nor  any  part  of  them  have  been  destroyed.  No 
act  of  Providence  or  of  the  public  enemy  has  affected  the  status.  The 
only  act  complained  of  is  that  of  the  Georgia  Legislature.  There 
has  been  no  eviction  of  the  tenant  from  the  premises  by  the  landlord 
or  by  one  holding  paramount  title,  and  no  condemnation  of  any  part 
of  them.  Nor  has  the  law  prevented  the  carrying  out  of  the  written 
contract  between  these  parties.  An  underlying  error  in  the  contention 
of  the  plaintiff  in  error  arises  from  dealing  with  the  contract  of  lease 
as  different  from  w'hat  it  really  was.  The  landlord  leased  to  the  ten- 
ant a  certain  hotel,  including  a  barroom,  cigar  stand,  etc.  The  tenant 
contracted  to  pay  certain  rent,  that  the  premises  should  be  used  for 
hotel  purposes  alone,  and  that  it  should  be  a  first-class  hotel,  with  oth- 
er agreements  not  material  now  to  recite. 

The  argument  for  the  plaintiff  in  error  treats  the  lease,  so  far  as  re- 


Ch.  G)  RENTS  591 

lates  to  the  barroom,  as  a  lease  of  the  "bar  privilege"  or  the  right  to 
sell  liquor.  Such  is  not  the  effect  of  the  written  lease.  The  landlord 
leased  the  premises  to  the  lessee.  So  far  as  he  was  concerned  as 
landlord,  under  the  law  as  it  then  stood,  he  gave  the  lessee  the  privilege 
of  using  a  portion  of  them  for  a  bar  or  of  subrenting.  But  he  did 
not  contract  or  warrant  that  the  law  would  remain  unchanged,  or  that 
there  should  be  any  diminution  of  rent,  if  a  change  occurred.  It  may 
be  unfortunate  for  the  lessee  that  he  did  not  anticipate  the  possibility 
of  the  passage  of  a  prohibition  law  and  provide  for  such  a  contingen- 
cy; but  that  he  did  not  do  so  does  not  alter  the  contract  as  made.  The 
lessee  is  still  entitled  to  the  occupancy  and  use  of  the  premises.  The 
landlord,  who  had  nothing  to  do  with  making  the  sale  of  liquor  by 
the  lessee  impossible  under  the  law,  is  entitled  to  his  rent.  The  law 
has  not  made  it  impossible  to  perform  the  contract  of  rental  of  prem- 
ises. That  must  not  be  confused  with  the  prohibition  by  law  of  sell- 
ing liquor  on  the  rented  premises.  See,  on  incidental  injury  from 
police  laws,  MIenken  v.  City  of  Atlanta,  78  Ga.  668,  2  S.  E.  559; 
State  V.  Griffin,  69  N.  H.  1,  39  Atl.  260,  41  L.  R.  A.  177,  76  Am.  St. 
Rep.  139.  *  •  *  * 
Judgment  affirmed. 


CIBEL  &  HILLS'  CASE. 

(Court  of  Common  Pleas,  1588.     1  Leon.  110.) 

A  lease  was  made  of  a  certain  house  and  land  rendering  rent,  and 
another  sum,  nomine  poense ;  and  for  the  nomine  poense  the  lessor 
brought  an  action  of  debt ;  the  lessee  pleaded,  that  the  lessor  had  en- 
tered into  parcel  of  the  land  demised,  upon  which  they  were  at  issue, 
and  found  for  the  plaintiff :  and  now  the  lessor  brought  debt  for  the 
rent  reserved  upon  the  same  lease :  to  which  the  defendant  pleaded,  ut 
supra,  scil.  an  entry  into  parcel  of  the  land  demised :  and  issue  was 
joyned  upon  it;  and  one  of  the  jury  was  challenged,  and  withdrawn 
because  he  was  one  of  the  former  jury :  and  the  issue  now  was,  wheth- 
er the  said  Cibel  the  lessor,  expulit  &  amovit  &  adhuc  extra  tenet,  the 
said  Hills.  And  to  prove  the  same,  it  was  given  in  evidence  on  the  de- 
fendant's part,  that  upon  the  land  demised  there  was  a  brick-kill,  and 
thereupon  a  little  small  cottage,  and  that  the  lessor  entered,  and  went 
to  the  said  cottage  and  took  some  of  the  bricks  and  untiled  the  said 
cottage :  but  of  the  other  side  it  was  said,  that  the  lessor  had  reserved 
to  himself  the  bricks  and  tiles  aforesaid,  which  in  truth  were  there 
ready  made  at  the  time  of  the  lease  made,  and  that  he  did  not  untile 
the  brick-kill  house,  but  that  it  fell  by  tempest,  and  so  the  plaintiff  did 
nothing  but  came  upon  the  land  to  carry  away  his  own  goods :  and  also 
he  had  used  the  said  bricks  and  tiles  upon  the  reparation  of  the  house. 
And  as  to  the  extra  tenet,  which  is  parcel  of  the  issue,  the  lessor  did 
not  continue  upon  the  land,  but  went  off  it,  and  relinquished  the  pos- 


592  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

session :  but  as  to  this  last  point,  it  seemed  to  the  court,  that  it  is  not 
material  if  the  plaintiff  continued  his  possession  there  or  not,  for  if  he 
once  doth  anything  which  amounts  to  an  entry,  although  that  he  depart 
presently,  yet  the  possession  is  in  him  sufficient  to  suspend  the  rent, 
and  he  shall  be  said,  extra  tenere  the  defendant  the  lessee,  until  he 
hath  done  an  act  which  doth  amount  to  a  re-entry.  And  afterwards  to 
prove  a  re-entry,  it  was  given  in  evidence  on  the  plaintiff's  part,  that 
the  defendant  put  in  his  cattel  in  the  field  where  the  bricK-kill  was, 
and  that  the  cattel  did  estray  into  the  place  where  the  defendant  had 
supposed  that  the  plaintiff  had  entered.  And  by  Anderson,  Justice, 
the  same  is  not  any  re-entry  to  revive  the  rent,  because  they  were  not 
put  into  the  same  place  by  the  lessee  himself,  but  went  there  of  their 
own  accord.    And  such  also  was  the  opinion  of  Justice  PEriam. 


1  ROLLE'S  ABRIDGMENT,  940,  EXTINGUISHMENT,  N,  1,  2. 

If  a  man  leases  a  rectory  for  years  reserving  a  rent  and  upon  part 
of  the  glebe  in  a  corner  of  the  close  is  a  sheep  cote  and  the  lessor  en- 
ters and  destroys  this  and  the  lessee  re-enters  and  then  the  rent  is  in 
arrear,  the  rent  is  suspended  notwithstanding  the  re-entry  of  the  lessee 
in  the  toft ;  for  part  of  the  profit  of  the  thing  leased  is  taken  from  the 
lessee,  namely,  his  house,  and  this  by  the  act  of  the  lessor.  M.  Zl  El. 
[1595]   B.  R.,  per  Popham  and  Gawdy. 

If  the  lessor  of  a  wood  or  orchard  rendering  rent  cuts  them  down 
and  the  lessee  re-enters,  still  the  rent  is  suspended :    quaere  as  to  this. 


CARRELL  v.  READ. 

(Court    of    Queen's    Bench,    1595.     Owen,    65.) 

A  lease  for  years  was  made  of  divers  fenny  grounds  in  Cambridge 
ss.  and  the  lessee  covenanted  to  defend  the  ground,  for  being  sur- 
rounded with  water,  and  to  drain  the  water  out  of  other  lands  that 
were  demised  to  him  in  the  said  county.  And  upon  an  action  of  cove- 
nant for  not  performing,  the  defendant  pleaded  that  the  plaintiff  had 
entered  in  the  land  demised.  And  adjudged  no  plea  by  the  Court, 
because  the  covenant  was  not  in  respect  that  the  lessee  should  enjoy 
the  land,  nor  was  it  a  covenant  adhering  to  the  land,  but  to  a  collat- 
eral thing;  but  if  it  had  been  in  respect  of  enjoying  the  land,  there  it 
is  a  good  plea  to  say  that  the  plaintiff  had  entered,  but  where  the 
thing  to  be  done  is  collaterall,  it  is  otherwise,  and  also  if  he  did  plead 
such  plea,  yet  it  is  not  a  bar,  unlesse  he  holds  him  out  of  possession. 
Coke,  lib.  3,  221 ;  4  Ed.  3,  29.  The  lord  shall  not  have  a  cessavit  after 
entry  in  parcel.     10  Ed.  4,  11 ;  35  H.  6;  Bar.  162;    19  Ed.  4,  2." 

PsAcc:  Newton  v.  Allin,  1  Q.  B.  518  (1841) ;  Morrison  v.  Chadwick,  7  C. 
B.  266  (1849). 


Ch.  6)  I     RENTS  593 

PAGE  V.  PARR. 
(Upper   Bench,   1654.     Styles,   432.) 

Page  brought  an  action  of  covenant  upon  a  covenant  conteined  in  an 
indenture  of  a  demise  for  years,  for  the  not  paying  the  rent  reserved 
by  the  indenture,  according  to  the  covenant.  The  defendant  pleads  in 
bar  that  the  plaintiff  entered  into  part  of  the  land  demised  before  the 
rent  due,  for  which  the  action  v^-as  brought,  and  so  had  suspended  his 
rent :  the  plaintiff  replyed,  the  defendant  did  re-enter,  and  so  was 
possessed  as  in  his  former  estate,  and  to  this  replication  the  defendant 
demurred,  and  for  cause  he  shewed,  that  here  was  no  confession  and 
avoidance,  or  traverse  of  the  plea  in  bar. 

Roll,  Chief  Justice.  Have  you  shewed  that  he  continued  in  pos- 
session until  the  rent  grew  due ;  for  you  ought  to  shew  that  he  entered 
and  Avas  possessed  until  after  the  rent-day,  but  here  you  have  only 
said  Ihdf  he  was  possessed  in  his  former  right,  therefore  nil  capiat  per 
billam,  nisi. 


SMITH  v.  RALEIGH. 

(Nisi  Prius,  1814.     3  Camp.  513.) 

Assumpsit  for  the  use  and  occupation  of  a  house  and  garden.  Plea, 
the  general  issue. 

It  appeared,  that  after  the  defendant  had  agreed  to  take  the  prem- 
ises at  an  entire  rent,  and  possession  had  been  delivered  to  him,  the 
plaintiff  railed  off  a  part  of  the  garden,  and  built  a  privy  upon  it,  for 
the  use  of  a  number  of  his  other  tenants.  The  defendant  thereupon  re- 
turned the  keys  to  him. 

Lord  EllExborougii  ruled,  that  this  amounted  to  an  eviction  from 
part  of  the  demised  premises ;  which  the  taking  being  single,  and  the 
rent  entire,  he  considered  a  complete  answer  to  the  action. 

Plaintiff  non-suited.'* 

8*  This  case  was  recognized  by  Dallas.  J.,  in  Stokes  v.  Cooper,  Worcester 
Lent  Assizes,  1S14,  in  which  the  rule  was  laid  down  that,  after  eviction 
from  part,  the  landlord  cannot  recover  upon  the  original  contract,  and  tlie 
tenant,  by  giving  up  possession  of  the  residue,  is  entirely  discharged,  but 
that,  if  the  tenant,  after  the  eviction,  continues  in  possession  of  the  residue, 
he  may  be  lioble  upon  a  quantum  meruit.  Vide  Dalston  v.  Keeve,  L,d. 
Raym.  77  (1G97) ;  Clun's  Case,  10  Rep.  12S  (IGIS).— [Rep.] 

BiG.RlGHTS— 38 


594  BIGHTS   IN  THE   LAND   OP  ANOTHER  (Part  2 

BENNETT  v.  BITTLE  et  al. 
(Supreme  Court  of  Pennsylvania,  1834.    4  Rawle,  339.) 

Error  to  the  Court  of  Common  Pleas  of  Delaware  County. 

In  the  court  below,  an  action  of  replevin  was  brought  by  Lewis  Ben- 
nett, the  plaintiff  in  error,  against  WiUiam  Bittle  and  Josiah  Moore, 
the  defendants  in  error,  in  which  Moore  made  cognizance  as  the  bailiff 
of  Bittle,  who  avowed  for  rent  in  arrear.  The  plaintiff  repUed,  no 
rent  in  arrear,  and  an  eviction  of  part  of  the  premises  leased. 

On  the  trial,  the  defendants  gave  in  evidence  a  lease  from  William 
Bittle  to  Lewis  Bennett,  dated  the  9th  of  February,  1830,  of  which 
the  following  are  the  material  parts: 

"Be  it  remembered,  that  William  Bittle  has  leased  to  Lewis  Bennett, 
the  messuage,  tenement  or  tavern-house,  barn,  sheds,  &c.  with  four 
lots  of  land,  on  the  north-east  side  of  the  Westchester  road,  in  the 
township  of  Haverford,  and  county  of  Delaware,  known  by  the  name 
of  the  Spread  Eagle  Tavern,  to  hold  the  same  for  one  year  from 
the  first  day  of  April  next  ensuing,  the  said  Lewis  Bennett  yielding 
and  paying  to  the  said  William  Bittle,  the  rent  or  sum  of  three  hun- 
dred and  seventy-five  dollars,  together  with  the  price  of  the  license 
for  keeping  the  public  house,  and  all  the  taxes  that  may  be  levied  upon 
the  said  premises  for  the  year  1829.  It  is  further  agreed  to  pay  the 
rent  half  yearly." 

After  having  proved  that  Bennett  went  into  possession  of  the 
premises,  under  this  lease,  soon  after  the  middle  of  April,  1830,  and 
remained  in  possession  until  the  last  of  March,  1831,  the  defendants 
closed  their  case. 

The  plaintiff  then  examined  several  witnesses,  from  whose  evidence 
it  appeared,  that  about  the  first  May,  1830,  two  men  and  a  boy  em- 
ployed by  Bittle,  hauled  manure  out  of  the  barnyard.  They  were 
hauling  it  the  greater  part  of  one  day,  and  they  afterwards  returned 
to  haul  more.  Bennett  was  not  at  home  on  the  first  day.  He  after- 
wards reproved  Bittle  for  taking  away  the  manure,  who  replied,  he 
would  do  as  he  pleased.  Some  further  dispute  then  took  place  be- 
tween them.  Bittle.  also  turned  cattle  into  the  barn  lot;  one  day 
seven,  and  the  next  day  ten,  and  kept  them  there  more  than  two 
weeks,  putting  them  in  in  the  morning,  and  taking  them  out  at  night. 
Bennett  forbade  his  putting  cattle  into  the  lot,  and  told  him  he  should 
charge  him  the  same  that  he  did  for  drove  cattle.  Bennett  used  the 
barn  and  lot,  but  each  insisted  that  they  were  his.     *     *     * 

When  the  evidence  was  closed,  the  president  judge  delivered  to 
the  jury  the  following  charge.    *    *     * 

"In  the  course  of  the  argument  the  court  has  been  asked  by  the 
plaintift"'s  counsel  to  instruct  the  jury,  'That  any  entry  on  the  prem- 
ises demised  against  the  will  or  wishes  of  the  tenant,  is  an  eviction  in 
point  of  law,  and  suspends  the  rent.'    I  cannot  so  instruct  the  jury.    If 


Ch.  6)  RENTS  595 

such  were  the  law,  and  if  Mr.  Bittle  had  entered  the  tavern  of  Mr. 
Bennett,  after  having  been  forbidden — had  walked  over  his  field, 
or  without  leave  had  walked  into  the  little  orchard  and  carried  away 
a  basket  of  apples  or  fine  peaches,  or  in  short  committed  any  other 
trespass,  it  would,  according  to  this  position,  be  an  eviction,  and  sus- 
pend the  whole  rent.  But  the  law  is  not  so ;  in  this,  as  in  every  other 
instance,  it  is  more  consonant  to  reason ;  it  declares,  that  if  the  land- 
lord takes  the  high-handed  measure  of  entering  upon  the  lands  he 
has  leased  to  his  tenant,  and  ejects,  expels,  evicts,  or  turns  out  the 
tenant,  and  prevents  him  from  enjoying  and  using  the  land,  or  a 
portion  of  it,  which  he  had  solemnly  leased  to  him,  thus  preventing 
the  tenant's  enjoyment  of  the  premises,  in  respect  of  which  rent 
was  to  be  paid,  that  would  be  an  eviction  which  would  suspend  the 
rent;  so  that  the  inquiry  with  this  jury  will  be  whether  Bittle  did 
eject  from,  and  dispossess  Bennett,  and  thus  evict  him  of  any  partic- 
ular portion  of  the  premises  really  demised  to  him,  and  for  which  the 
rent  was  to  be  paid ;  or  whether  Bittle  merely  did  other  wrongs  short 
of  eviction  and  expulsion,  such  as  trespasses  in  the  field  or  barn- 
yard. If  the  former,  the  rent  for  that  half  year  is  wholly  suspend- 
ed; and  if  the  latter  only,  it  affords  the  tenant  no  such  de- 
fence."   *    *    * 

Kennedy,  J.^^  *  *  *  />^^  entry  of  the  lessor,  without  an  expul- 
sion of  the  lessee  from  at  least  some  part  of  the  demised  premises, 
is  insufficient  to  produce  a  suspension  of  the  rent;  it  follows,  that  the 
court  below  were  right  in  refusing  to  charge  the  jury  as  requested 
by  the  counsel  of  the  plaintiff,  and  in  directing  them  that  nothing  short 
of  an  eviction  or  expulsion  from  at  least  a  portion  of  the  demised 
premises,  would  be  sufficient  for  that  purpose.  Whether  an  eviction 
was  proved  or  not,  was  left  entirely  as  a  matter  of  fact  to  be  decided 
by  the  jury,  upon  which  I  cannot  perceive  that  the  president  of  the 
court  in  delivering  the  charge,  ventured  to  intimate  an  opinion.  He 
seems  to  have  met,  very  fully  and  fairly  the  proposition  contended 
for  by  the  counsel  of  the  plaintiff.  And  it  was  perhaps  owing  to  a 
conviction  resting  on  the  mind  of  the  plaintiff's  counsel  at  the  time, 
that  his  evidence  at  most  tended  only  to  prove  a  mere  entry  by  the  de- 
fendant against  the  will  and  consent  of  the  plaintiff,  that  he  was  in- 
duced to  contend  as  he  did,  that  such  an  entry  amounted  in  law  to  an 
eviction.  For  if  he  had  conceived  that  his  evidence  was,  under  any 
view  that  might  be  taken  of  it  by  the  jury,  sufficient  to  establish  any 
thing  beyond  such  entry,  as  for  instance,  an  exclusion  or  holding  of 
the  plaintiff  out  of  the  possession  and  enjoyment  of  any  part  of  the 
demised  premises,  he  ought  to  have  shaped  his  proposition  according- 
ly, and  to  have  asked  the  instruction  of  the  court  to  the  jury  in  re- 
gard to  it;  and  in  this  way,  it  is  more  than  probable,  some  of  those 
things,  which  it  has  been  alleged  on  the  argument  that  the  court  in 

»B  The  statement  of  facts  is  abri(lj,'ed  and  part  of  the  opinion  is  omitted. 


596  RIGHTS   IN   THE   LAND   OF   ANOTHER  ,  (Part  2 

explanation  of  what  in  law  amounted  to  an  eviction  ought  to  have  told 
the  jury,  would  have  been  mentioned  by  the  court  to  them.  But  as 
the  proposition  of  the  plaintiff's  counsel  did  not  require  any  such  il- 
lustration, there  was  nothing  improper  on  the  part  of  the  court  in 
omitting  it. 

The  judgment  of  the  Court  below  is  affirmed.^^ 


PRIDGEON  V.  EXCELSIOR  BOAT  CLUB. 

(Supreme  Court  of  Michigan,  1887.     66  Mich.  326,  33  N.   W.  502.) 

Sherwood,  J,  The  plaintiff  sued  the  defendant  in  this  case  for  the 
use  of  a  water  lot  on  the  Detroit  river,  claiming  four  months'  rent 
due  him  on  the  lease  under  which  the  defendant  occupied,  ending  De- 
cember 31,  1885.  The  rental  was  the  sum  of  $25  per  month.  By 
the  terms  of  the  lease  the  lot  extended  to  the  channel  bank  of  the  riv- 
er, and  included  "all  and  singular  the  benefits,  liberties,  and  privileges 
belonging  and  appertaining  to  the  premises."  The  defense  was  evic- 
tion during  the  last  month  of  the  term  for  which  rent  was  claimed 
to  be  due.  The  plaintiff  obtained  judgment  before  the  justice  where 
the  suit  was  commenced,  and  on  appeal  a  like  result  was  obtained,  and 
the  defendant  brings  error. 

The  facts  which  the  defendant  claims  amount  to  an  eviction  are 
substantially  as  follows:  The  premises  were  rented  by  lease  to  be 
used  for  a  boathouse;  that  the  only  method  of  going  to  and  from 
the  river  was  from  the  front  of  the  slip ;  that  the  latter  part  of  No- 
vember, 1886,  the  plaintiff  caused  his  propellor  to  be  moored  at  the 
docks  on  either  side  of  the  slip,  and  in  front  of  defendant's  premises, 
completely  shutting  off  ingress  and  egress  to  the  same,  thereby  de- 
priving the  defendant  of  the  particular  and  only  use  for  which  the 
premises  were  rented;  that  the  defendant  requested  the  plaintiff  to 
remove  the  propeller  that  they  might  have  access  to  their  property, 
but  the  plaintiff  neglected  so  to  do,  and  that  the  defendant  had  not 
any  beneficial  enjoyment  of  the  property  during  the  time  the  block- 
ade by  the  propeller  continued.  It  is  claimed  by  counsel  for  the  de- 
fendant that  these  facts  constitute  such  an  eviction  as  will  suspend 
the  right  of  payment  of  rent  during  their  continuance;  and  this  is  the 
only  question  made  in  the  case. 

We  think  counsel  are  correct  in  this  position.  If  the  facts  stated 
are  true,  the  action  of  the  plaintiff  in  the  premises  was  a  substantial 
eviction  of  the  defendant  from  a  part,  if  not  the  whole,  of  the  rented 
lot.  The  subject  cannot  be  discussed  except  in  connection  with  the 
object  and  purpose  for  which  the  lot  was  rented  and  occupied.     The 

3«Acc.:  Harrison's  Case,  Clayton,  34  (1635);  Roper  v.  Lloyd,  T.  Jones,  148 
(1678).  See  Way  v.  Myers,  64  Ga.  760  (ISSO) ;  Hayward  v.  Raiuge,  33  Neb. 
836,  51  N.  W.  229   (1892). 


Ch.  6)  RENTS  597 

disturbance  of  the  lessee's  beneficial  enjoyment  of  the  water  front  of 
the  premises  amounts  to  an  eviction,  actual,  if  any  exists,  and  not 
constructive.  The  right  toenter  upon  the  land  leased  was  of  no  inter- 
est or  benefit  to  the  defendant,  only  as  it  furnished  a  water  front 
upon  which  the  club  could  store  its  boats,  and  launch  and  land  the  same 
unobstructed. 

In  a  case  like  the  present  the  technical  rule  which  requires  the  ele- 
ment either  of  absolute  expulsion  from  the  property  by  the  landlord, 
or  abandonment  by  the  tenant,  to  be  included  in  the  act  of  eviction, 
does  not  and  ought  not  to  be  applied.  A  party  should  be  held  evicted 
when  the  act  of  the  landlord  is  of  such  a  character  as  to  deprive  the 
tenant,  or  has  the  effect  of  depriving  him,  of  the  beneficial  use  and 
enjoyment  of  the  whole  or  any  part  of  the  demised  property,  to  the 
extent  he  is  tlius  deprived.  Upton  v,  Townsend,  17  C.  B.  30;  Peck 
V.  Hiler,  24  Barb.  (N.  Y.)  178;  Briggs  v.  Hall,  4  Leigh  (Va.)  484, 
26  Am.  Dec.  326;  Dobbins  v.  Duquid,  65  111.  464;  Lynch  v.  Baldwin, 
69  111.  210;  Royce  v.  Guggenheim,  106  Mass.  201,  8  Am.  Rep.  322; 
Bentley  v.  Sill,  35  111.  414 ;  Dyett  v.  Pendleton,  8  Cow.  (N.  Y.)  727 ; 
Crommelin  v.  Thiess,  31  Ala.  412,  70  Am.  Dec.  499;  Randall  v.  Albur- 
tis,  1  Hilt.  (N.  Y.)  283 ;  Lawrence  v.  French,  25  Wend.  (N.  Y.)  443 ; 
Jackson  v.  Eddy,  12  Mo.  209;  Shumway  v.  Collins,  6  Gray  (Mass.) 
232;  Christopher  v.  Austin,  11  N.  Y.  216.  And  in  such  case,  when^ 
the  eviction  is  by  the  landlord,  the  rent  is  suspended  during  the  time 
of  such  disturbance.  Wood,  Landl.  &  Ten.  793;  Tayl.  Landl.  & 
Ten.  §§  378,  379;  Vaughan  v.  Blanchard,  4  Dall.  125,  1  L.  Ed.  769; 
Neale  v.  Mackenzie,  2  Cromp.,  M.  &  R.  84;  Blair  v.  Claxton,  18  N. 
Y.  529;  Griffith  v.  Hod,!?es,  1  Car.  &  P.  419;  Hoeveler  v.  Fleming,  91 
Pa.  322;  Leishmah  v.  White,  1  Allen  (Mass.)  489;  Hayner  v.  Smith, 
63  111.  430,  14  Am.  Rep.  124. 

The  defense  claimed  in  this  case  is  not  that  the  plaintiff  did  acts 
tending  to  diminish  the  enjoyment  of  the  leased  rights  and  property, 
but  that  what  he  did  deprived  the  defendant  of  them  altogether,  and 
which,  it  would  seem  from  the  record,  was  substantially  done.  We 
think  the  judgment  should  be  reversed,  and  a  new  trial  granted. 

Champlin  and  Morse,  JJ.,  concurred. 

C.\MPBELL,  C.  J.,  did  not  sit.*'' 

ST  Ace:  Hunter  v.  Reiley,  43  N.  J.  Law.  4S0  (18S1) ;  American  Tract  So- 
ciety V.  Jones,  76  Misc.  Rep.  23G.  134  N.  Y.  Supp.  611  (1912). 

A.  leased  the  basement  and  first  floor  of  a  tliree-story  building  to  X.,  re- 
serving rent,  the  fee  of  the  street  being  owned  by  the  abuttor  subject  to  the 
public  easement.  During  the  term  A.  erected  a  building  upon  an  adjacent 
lot  owned  by  him  and  for  three  months  deposited  building  material  upon  the 
street  and  sidewalk  in  front  of  the  premises  leased  to  X,  and  tore  up  and 
fenced  off  the  sidewalk  adjacent.  X.  continued  in  occupation  of  the  prem- 
ises. Held,  X.  is  not  liable  for  the  rent  of  the  premises  during  the  said 
three  months.  Edmison  v.  Lowry,  3  S.  D.  77,  52  N.  W.  5S3,  17  U  K.  A. 
275,  44  Am.  St.  Rep.  774  (1892).  Compare  Meeker  v.  Spalsbury,  66  N.  ,1. 
Law,  60,  48  Atl.  1026  (1901);  Hancock  v.  Austin,  post,  p.  636,  and  footnote 
thereto. 


598  RIGHTS   IN  THE  LAND   OF   ANOTHER  (Part  2 


SMITH  V.  McENANY. 

(Supreme  Judicial  Court  of  Massachusetts,   1S97.     170  Mass.  26,   48  N.   E. 
781,  64  Am.  St.  Rep.  272.) 

Holmes,  J.  This  is  an  action  upon  a  lease  for  rent  and  for  breach 
of  a  covenant  to  repair.  There  also  is  a  count  on  an  account  annexed, 
for  use  and  occupation,  etc.,  but  nothing  turns  on  it.  The  defense  is 
an  eviction.  The  land  is  a  lot  in  the  city  of  Boston,  the  part  con- 
cerned being  covered  by  a  shed  which  was  used  by  the  defendant  to 
store  wagons.  The  eviction  relied  on  was  the  building  of  a  permanent 
brick  wall  for  a  building  on  adjoining  land  belonging  to  the  plaintiff's 
husband,  which  encroached  9  inches,  by  the  plaintiff's  admission,  or, 
as  his  witness  testified,  from  measurements,  13%  inches,  or,  as  the 
•  defendant  said,  2  feet,  for  34  feet  along  the  back  of  the  shed.  The 
wall  was  built  with  the  plaintiff's  assent,  and  with  knowledge  that  it 
encroached  on  the  demised  premises.  The  judge  ruled  that  the  de- 
fendant had  a  right  to  treat  this  as  an  eviction  determining  the  lease. 
The  plaintiff  asked  to  have  the  ruling  so  qualified  as  to  make  the 
question  depend  upon  whether  the  wall  made  the  premises  "uninhab- 
itable for  the  purpose  for  which  they  were  hired,  materially  chang- 
ing the  character  and  beneficial  enjoyment  thereof."  This  was  re- 
fused, and  the  plaintiff  excepted.  The  bill  of  exceptions  is  unneces- 
sarily complicated  by  the  insertion  of  evidence  of  waiver  and  other 
matters,  but  the  only  question  before  us  is  the  one  stated,  and  we  have 
stated  all  the  facts  which  are  necessary  for  its  decision. 

The  refusal  was  right.  It  is  settled  in  this  state,  in  accordance 
with  the  law  of  England,  that  a  wrongful  eviction  of  the  tenant  by 
the  landlord  from  a  part  of  the  premises  suspends  the  rent  under  the 
lease.  The  main  reason  which  is  given  for  the  decisions  is  that  the 
enjoyment  of  the  whole  consideration  is  the  foundation  of  the  debt 
and  the  condition  of  the  covenant,  and  that  the  obligation  to  pay  can- 
not be  apportioned.  Shumway  v.  Collins,  6  Gray,  227,  232;  Leish- 
man  v.  White,  1  Allen,  489;  Royce  v.  Guggenheim,  106  ]\Iass.  201, 
202,  8  Am.  Rep.  322;  Smith  v.  Raleigh,  3  Camp.  513;  Watson  v. 
Waud,  8  Exch.  335,  339.  It  also  is  said  that  the  landlord  shall  not 
apportion  his  own  wrong,  following  an  expression  in  some  of  the  older 
English  books.  Royce  v.  Guggenheim,  supra ;  Colburn  v.  Morrill,  117 
Mass.  262,  19  Am.  Rep.  415  ;  Mirick  v.  Hoppin,  118  Mass.  582,  587.  But 
this  does  not  so  much  explain  the  rule  as  suggest  the  limitation  that 
there  may  be  an  apportionment  when  the  eviction  is  by  title  paramount 
or  when  the  lessor's  entry  is  rightful.  Fillebrown  v.  Hoar,  124  ]\Iass. 
580,  583;  Neale  v.  Mackenzie,  1  Mees.  &  W.  747,  758;  Christopher 
v.  Austin,  11  N.  Y.  216,  218;  Hodgkins  v.  Robson,  1  Vent.  276;  Id., 
Poll.  141;  Id.,  3  Keb.  557;  Co.  Litt.  148b;  Gilb.  Rents,  151  et  seq. 
It  leaves  open  the  question  why  the  landlord  may  not  show  that  his 
wron?  extended  onlv  to  a  part  of  the  premises.     No  doubt  the  ques- 


Ch.  6)  BENTS  599 

tion  equally  may  be  asked  why  the  lease  is  construed  to  exclude  ap- 
portioiiincnt,  and  it  may  be  that  this  is  partly  due  to  the  traditional 
doctrine  that  the  rent  issues  out  of  the  land,  and  that  the  whole  rent 
is  charged  on  every  part  of  the  land.  Gilbert,  Rents,  178,  179,  gives 
this  as  one  ground  why  the  lessor  shall  not  discharge  any  part  from 
the  burden  and  continue  to  charge  the  rest,  coupled  with  considera- 
tions partly  of  a  feudal  nature.  See,  also,  Walker's  Case,  3  Coke, 
22a,  22b ;  Hodgkins  v.  Thornborough,  Poll.  141,  143 ;  Neale  v.  Mac- 
kenzie, 1  Mees.  &  W.  747,  763.  But  the  same  view  naturally  would 
be  taken  if  the  question  arose  now  for  the  first  time.  The  land  is 
hired  as  one  whole.  If  by  his  own  fault  the  landlord  withdraws  a 
part  of  it  he  cannot  recover  either  on  the  lease  or  outside  of  it  for 
the  occupation  of  the  residue.^^  Leishman  v.  White,  1  Allen,  489. 
See  Fuller  v.  Ruby,  10  Gray,  285,  289;   Keener,  Quasi  Cont.  215. 

It  follows  from  the  nature  of  the  reason  for  the  decisions  which 
we  have  stated  that,  when  the  tenant  proves  a  wrongful  deforcement 
by  the  landlord  from  an  appreciable  part  of  the  premises,  no  inquiry  is 
open  as  to  the  greater  or  less  importance  of  the  parcel  from  which 
the  tenant  is  deforced.  Outside  the  rule  de  minimis,  the  degree  of 
interference  with  the  use  and  enjoyment  of  the  premises  is  important 
only  in  the  case  of  acts  not  physically  excluding  the  tenant,  but  alleged 
to  have  an  equally  serious  practical  effect,  just  as  the  intent  is  import- 
ant only  in  the  case  of  acts  not  necessarily  amounting  to  an  entry  and 
deforcement  of  the  tenant.  Skally  v.  Shute,  132  Mass.  367.  The  in- 
quiry is  for  the  purpose  of  settling  whether  the  landlord's  acts  had 
the  alleged  effect;  that  is,  whether  the  tenant  is  evicted  from  any  por- 
tion of  the  land.  If  that  is  admitted,  the  rent  is  suspended  because, 
by  the  terms  of  the  instrument  as  construed,  the  tenant  has  made  it  an 
absolute  condition  that  he  should  have  the  whole  of  the  demised  prem- 
ises, at  least  as  against  willful  interference  on  the  landlord's  part.  A 
case  somewhat  like  the  present  is  Upton  v.  Townsend,  17  C.  B.  30, 
74.    See,  also,  Sherman  v.  Williams,  113  M^ss.  481,  485,  18  Am.  Rep. 

522.^^ 

* 

3  8  "To  tlie  claim  on  the  covenant  [for  rent]  the  answer  is  the  eviction;  to 
the  demand  for  use  and  occupation  the  answer  is  that  the  defendant  holds 
under  his  lease ;  so  that  in  neither  aspect  of  the  case  can  the  plaintiff  main- 
tain his  action."  Bigelow,  J.,  in  Leishman  v.  ^yhite,  1  Allen  (Mass.)  4sy, 
490  (1S61).  Contra:  Anderson  v.  Winton,  136  Ala.  422,  34  South.  962  (1902). 
Compare  Collins  v.  Karatopsky,  86  Ark.  316  (ISSO). 

3 9 Ace:  Morris  v.  Kettle,  57  N.  J.  Law,  218,  30  Atl.  879  (1S94) ;  Christo- 
pher V.  Austin,  11  N.  Y.  216  (1854).  Compare  Hayner  v.  Smith,  63  111.  430, 
14  Am.  Rep.  124  (1872). 

A.  leased  premises  to  B.  at  a  specified  monthly  rental.  The  rent  being 
four  days  in  arrears  A.  filed  a  bill  against  B.  alleging  that  B.  was  insolvent 
and  was  removing  his  assets  from  the  state  and  asking  the  appointment  of 
a  receiver.  A  temporary  receiver  was  appointed,  who  took  possession  of 
the  leased  premises  and  the  property  thereon  and  ousted  B.  therefrom  until 
several  weeks  later,  when  the  receivership  was  discharged ;  it  not  appear- 
ing that  B.  was  insolvent.  In  an  action  by  A.  against  B.  for  rent,  the 
above  facts  were  alleged  as  an  eviction,  suspending  the  obligation  to  pay 


600  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

We  must  repeat  that  we  do  not  understand  any  question,  except 
the  one  which  we  have  dealt  with,  to  be  before  us.  An  eviction  like 
the  present  does  not  necessarily  end  the  lease  (Leishman  v.  White, 
1  Allen,  489,  490),  or  other  obligations  of  the  tenant  under  it,  such  as 
the  covenant  to  repair  (Carrel  v.  Read,  Cro.  Eliz.  374;  Snelling  v. 
Stagg,  Buller,  N.  P.  165;  Morrison  y.  Chadwick,  7  C.  B.  266;  New- 
ton V.  Allin,  1  Q.  B.  518). 

Exceptions  overruled. 


PENDLETON  v.  DYETT. 

DYETT  V.  PENDLETON. 

(Supreme  Court  of  New  York,  1825.    4  Cow.  581.    On  Writ  of  Error  In  Court 
for    Correction   of    Errors,    1826.     8    Cow.    727.) 

Covenant  for  rent  upon  a  lease  dated  October  15th,  1818,  given  by 
the  plaintiff  to  the  defendant,  for  the  term  of  two,  three,  five,  or  eight 
years,  but  not  for  a  less  term  than  two  years,  of  two  rooms,  or  the 
whole  of  the  second  floor,  and  two  rooms  chosen  by  the  defendant  on 
the  third  floor  of  a  certain  house  or  store  in  Beaver  street,  corner  of 
William  street,  in  the  city  of  New  York,  at  a  rent  of  $425  per  annum, 
which  the  defendant  covenanted  to  pay,  and  entered  into  possession  of 
the  demised  premises. 

The  defendant  pleaded,  1st,  non  est  factum ; 

2.  That  before  any  of  the  rent  became  due,  to  wit,  on,  &c.  the  plain- 
tiff entered  upon  the  demised  premises,  and  ejected,  expelled,  put  out 

rent.  The  court  held  that  these  facts  did  not  constitute  a  defense,  saying, 
per  Fish,  C.  J.:  "In  the  present  case  it  cannot  be  said  that  there  was  an 
actual  expulsion  of  the  defendant  from  the  rented  premises  by  the  plain- 
tiff itself.  Was  the  appointment  of  a  temporary  receiver  upon  the  applica- 
tion of  the  plaintiff,  and  the  taking  of  possession  of  the  leased  premises  by 
him  under  the  order  of  the  court  and  at  the  Instance  of  the  plaintiCt,  such 
an  act,  under  the  circumstances  above  set  forth,  as  indicated  an  intention 
on  the  part  of  the  plaintifE  to  deprive  the  defendant  of  the  enjoyment  of  the 
rented  premises?  We  think  not.  The  evident  purpose  of  the  plaintiflC  in 
applying  for  the  appointment  of  a  receiver,  taking  the  averments  in  the 
answer  and  offered  amendments  as  true,  was  to  secure  its  alleged  rights  and 
the  payment  of  the  rental  claimed  to  be  due  it  by  the  defendant.  *  *  * 
The  taking  possession  of  the  leased  premises,  under  the  circumstances, 
should  therefore  be  held  not  to  be  an  eviction  of  the  defendant  by  the  plain- 
tiff, but  merely  an  auxiliary  measure  frequently  incident  to  the  character  of 
cases  such  as  the  one  in  which  the  receiver  was  appointed,  for  the  purpose 
of  preserving  tempoi'arily  the  status,  and  not  with  an  intention  on  the  part 
of  the  landlord,  the  plaintiff,  that  the  tenant,  the  defendant,  should  no  longer 
continue  to  hold  the  premises."  Potts-Thompson  Liquor  Co.  v.  Capital  City 
Tobacco  Co.,  137  Ga.  648,  74  S.  E.  279  (1912). 

A,  leased  a  shop  to  X.,  the  entrance  of  which  was  known  to  be  over  the 
street  line.  Tlie  city  later  ordered  A.  to  remove  the  entrance,  which  he 
did,  only  in  pursuance  of  the  order.  In  an  action  by  A.  against  X.  for  sub- 
sequently accruing  rent,  held,  this  is  not  an  eviction,  so  as  to  suspend  the 
rent.  Duhain  v.  Mermod.  .Taccard  &  King  Jewelry  Co.,  211  N.  Y.  364,  105 
N.  E.  657,  Ann.  Cas.  1915C,  404  (1914).  Compare  Taylor  v.  Finnegan,  189 
Mass.  568,  76  N.  E.  20:'.,  2  L.  R.  A.  (N.  S.)  973  (1905) ;  Barns  v.  Wilson,  110 
Pa-  303,  9  Atl.  437  (1887). 


Ch.  6)  RENTS  601 

and  amoved  the  defendant,  and  kept  and  continued  him  so  ejected, 
expelled  and  amoved  from  thence  hitherto. 

Replication,  denying  the  expulsion  and  issue. 

The  cause  was  tried  at  die  New  York  Circuit,  June  19th,  1823,  be- 
fore Edwards,  C.  Judge. 

On  the  trial,  the  counsel  for  the  defendant  produced  receipts  for  rent 
to  the  1st  February,  1820,  and  offered  to  prove  that  about  that  time 
the  plaintiff  introduced  into  the  house  demised,  lewd  women  or  prosti- 
tutes, and  continued  this  practice  from  time  to  time  and  at  sundry 
times,  keeping  and  detaining  them  in  there  all  night  for  the  purpose 
of  prostitution;  that  such  women  would  frequently  enter  the  house 
in  the  day  time,  and,  after  staying  all  night,  would  leave  it  by  day 
light  in  the  morning;  that  the  plaintiff  sometimes  introduced  otlier 
men  into  tlie  house,  who,  together,  with  him,  kept  company  with  the 
lewd  women  or  prostitutes  during  the  night;  that  on  such  occasions, 
the  plaintiff"  and  the  women,  being  in  company  in  certain  parts  of  the 
house  not  included  in  the  lease,  but  adjacent  and  in  the  plaintiff's 
occupation,  were  accustomed  to  make  a  great  deal  of  indecent  noise  and 
disturbance,  the  women  often  screaming  extravagantly  so .  as  to  be 
heard  throughout  the  house,  and  by  the  near  neighbors ;  and  frequently 
using  obscene  and  vulgar  language,  so  loud  as  to  be  understood  at  a 
considerable  distance ;  that  such  noise  and  riotous  proceedings  being 
frequently  continued  all  night,  greatly  disturbed  the  rest  of  persons 
sleeping  in  other  parts  of  the  house,  and  particularly  in  the  parts  de- 
mised ;  that  these  practices  were  matter  of  conversation  and  reproach 
in  the  neighborhood ;  and  were  of  a  nature  to  draw,  and  did  draw, 
odium  and  infamy  upon  the  house  as  being  a  place  of  ill  fame,  so  that 
it  was  no  longer  reputable  for  moral  or  decent  persons  to  dwell  or 
enter  there;  that  all  these  practices  were  by  the  procurement  or  per- 
mission and  concurrence  of  the  plaintiff.  That  the  defendant,  be- 
ing a  person  of  good  and  respectable  character,  was  compelled  by  the 
repetition  of  these  practices  to  leave  the  house,  and  did  leave  it  for  that 
cause,  about  the  beginning  of  March,  1820;  and  did  not  return. 
That  a  respectable  man  by  the  name  of  Fox,  to  whom  part  of  the 
house  had  been  underlet,  left  it  for  the  same  cause. 

This  evidence  was  objected  to,  and  overruled  by  the  Judge  as  in- 
admissible upon  the  issue ;  and  the  defendant's  counsel  excepted.  Ver- 
dict for  the  plaintiff,  damages  $362.52. 

Curia,  per  Sutherland,  J.  Eviction  of  the  whole,  or  any  part  of 
the  demised  premises,  is  a  good  plea  in  bar  to  an  action  either  of  debt 
or  covenant  for  the  rent.  In  this,  all  the  authorities  agree.  (Cruise, 
Dig.  tit.  28,  Rents,  ch.  3.  Woodfall,  412-13.  1  Saund.  204,  n.  2,  and 
cases  there  cited.)  The  plea  in  this  case  is  unexceptionable  in  point  of 
form.  It  is  according  to  the  established  precedents.  (Salmon  v.  Smith, 
1  Saund.  203,  4,  n.  2.)  It  states  that  the  plaintiff,  (who  was  the  de- 
fendant's lessor,)  entered  into  and  upon  the  demised  premises,  and 
ejected,  expelled,  put  out  and  amoved  the  said  defendant  from  the 


G02       ~  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

possession  thereof,  and  kept  and  continued  him  so  ejected,  expelled, 
&c.  from  thence  hitherto.  The  only  question  in  the  case,  is,  whether 
the  evidence  offered  by  the  defendant,  and  which  was  rejected  by  the 
Judge  who  tried  the  cause,  supported  the  plea,  or  was  of  a  character 
which  ought  to  have  been  submitted  to  the  jury,  for  them  to  decide 
whether  it  made  out  the  fact  of  eviction  or  not.  No  actual  ouster  or 
turning  out  of  possession  is  pretended.  The  proof  offered  does  not 
show  an  entry  by  the  lessor  upon  the  premises.  It  does  not  make  out 
even  a  trespass.  The  acts  complained  of  as  amounting  to  an  eviction, 
were  committed  in  a  different  part  of  the  same  house,  with  which  the 
demised  premises  had  no  connection,  except  that  the  approach  to  each 
was  by  a  common  entrance.  They  operated  not  upon  the  physical 
safety  of  the  tenant,  or  the  physical  condition  of  the  demised  prem- 
ises; but  upon  the  moral  sense  and  feeling  of  the  defendant.  The 
acts  were  exceptionable  in  themselves ;  and,  if  they  could  not  be  abat'ed, 
the  defendant  had  not  only  a  moral  right,  but  it  was  his  moral  duty, 
to  abandon  the  scene  of  riot  and  prostitution.  But  they  could  have 
been  abated.  The  law  aft'orded  a  prompt  and  sufficient  remedy.  The 
police  of  the  city,  upon  the  complaint  of  the  defendant,  would  have 
instantly  taken  the  plaintiff  and  his  associates  into  custody,  and  pun- 
ished them  by  fine  and  imprisonment  as  often  as  the  ofi'ence  was  re- 
peated. There  was  no  moral  necessity  therefore  for  "abandoning  the 
prernises.  Suppose  the  plaintiff  had  been  in  the  habit  of  exhibiting  him- 
self either  in  the  common  passage  or  in  the  street  opposite  the  prem- 
ises in  question,  in  indecent  attitudes,  or  in  a  state  of  oft'ensive  naked- 
ness, so  that  the  defendant  and  his  family  could  not  leave  his  house 
witliout  witnessing  the  disgusting  exhibition ;  would  this  cause  have 
supported  a  plea  of  eviction  ?  They  would  both  stand  upon  the  footing 
of  nuisances,  which  the  plaintiff  or  any  other  citizen  might  cause  to 
be  abated.  But  if,  instead  of  taking  that  course,  he  should  abandon- 
his  house,  it  must  be  considered  a  voluntary  and  not  a  compulsory 
act. 

But  I  apprehend  there  can  be  no  eviction,  without  an  actual  entry. 
Such  is  the  form  of  the  plea,  and  the  proof  must  sustain  it.  The  very 
definition  of  the  term  eviction,  is  an  expulsion  of  the  lessee  out  of  all 
or  some  part  of  the  demised  premises ;  and  Sergeant  Williams  says, 
that  to  occasion  a  suspension  of  the  rent,  the  plea  must  state  an  evic- 
tion or  expulsion  of  the  lessee  by  the  lessor,  and  a  keeping  him  out  of 
possession,  until  after  the  rent  became  due;  otherwise  it  will  be  bad. 
(1  Saund.  204,  n.  2.)  If  a  constructive  expulsion,  without  entry,  may 
constitute  an  eviction,  which  will  operate  as  a  suspension  of  the  rent, 
why  is  the  averment  of  an  entry  contained  in  all  the  precedents  and 
why  do  all  the  cases  agree,  that  without  such  averment  the  plea  would 
be  bad?  Thus,  in  Timbrell  v.  Bullock,  (Styles,  446,)  it  is  said  that,  to 
make  a  suspension  of  rent  reserved  upon  a  lease  for  years,  the  lessor 
must  oust  the  lessee  of  part  of  the  thing  let,  at  least,  and  hold  him  out 
until  after  the  day  on  which  the  rent  is  made  payable  by  the  lease; 


Ch.  6)  RENTS  «  603 

and  if  the  lessee  re-enters  the  rent  is  revived.     A  re-entry  presup- 
poses an  actual  ouster  or  expulsion,     *     *     * 

Hunt  V.  Cope,  (1  Covi'p.  242,)  is  a  strong  case.  There  the  defendant 
pleaded  that  the  lessor,  with  force  and  arms,  entered  upon  the  demised 
premises  and  demolished  a  summer  house,  (being  a  part  of  the  prem- 
ises,) by  means  whereof  the  tenant  had  been  deprived  of  the  use  of 
the  summer  house,  &c.  This  plea  was  held  to  be  bad,  because  it ' 
did  not  aver  an  actual  eviction  or  expulsion  of  the  lessee.  The 
defendant's  counsel  urged  that  the  facts  in  the  plea  amounted  to  an 
eviction,  on  the  ground  that  an  actual  entry  was  stated  and  a  destruc- 
tion of  a  portion  of  the  premises;  and  if  an  eviction  could  be  con- 
structively pleaded,  this  would  seem  to  be  good.  But  all  the  Court 
held  it  bad,  and  Aston,  J.,  says,  all  the  cases  in  the  books  suppose  the 
lessee  to  be  put  out  of  possession.  Therefore,  merely  saying  that  he 
was  deprived  of  the  enjoyment  of  the  premises  is  not  sufficient.  If  it  is 
necessary  to  state,  in  terms,  that  the  lessee  was  turned  out  of  posses- 
sion, in  order  to  make  a  good  plea  of  eviction,  it  would  seem  to  follow 
that  the  proof  in  support  of  the  plea  must  be  substantially  of  the 
same  character.  Lord  Mansfield,  in  Hunt  v.  Cope,  says  that  the  facts 
there  stated,  might  have  been  sufficient  for  the  jury  to  have  found  for 
the  defendant  under  a  good  plea  of  eviction.  But  there,  it  will  be 
recollected,  an  actual  entry,  and  a  physical  destruction  of  a  portion 
of  tlie  premises  are  averred;  and  if  an  actual  ouster  can  be  inferred 
from  circumstances,  it  surely  might  in  that  case;  yet  Lord  Mansfield 
considers  it  as  matter  of  doubt. 

In  the  case  before  us,  there  was  not  only  no  actual  entry,  but  no  as- 
sertion either  express  or  implied  of  a  right  of  entry  on  the  part  of 
the  lessor  or  of  any  other  right  or  control  over  the  demised  premises. 
The  disturbance  suffered  by  the  lessee  was  the  consequence  of  conduct 
on  the  part  of  the  lessor,  which  partook  of  the  nature  of  a  nuisance, 
and  which  he  had  the  power  of  abating  at  pleasure.  He  was  not, 
therefore,  constrained  by  any  necessity,  either  moral  or  physical,  to 
abandon  the  premises;  and,  in  judgment  of  law,  so  far  as  this  ac- 
tion is  concerned,  his  abandonment  must  be  considered  voluntary. 
The  evidence  offered  was  properly  rejected  by  the  Judge.  The  mo- 
tion for  a  new  trial  must  be  denied. 

New  trial  refused. 

[On  Wrif  of  Error.] 

Spencer,  Senator.*"  It  seems  to  be  conceded  that  the  only  plea 
which  could  be  interposed  by  the  defendant  below,  to  let  in  the  de- 
fence which  he  offered,  if  any  would  answer  that  purpose,  was,  that 
the  plaintiff  had  entered  in  and  upon  the  demised  premises,  and  ejected 
and  put  out  the  defendant.     Such  a  plea  was  filed;   and  it  contended 

*o  Part  of  the  opinion  of  Spencer,  Senator,  and  the  opinion  of  Cr^ry, 
Coldon,  and  Allen,  Senators,  are  omitted. 


604  RIGHTS   IN  THE   LAND   OP   ANOTHER  (Part  2 

on  the  one  side,  that  it  must  be  Hterally  proved,  and  an  actual  entry 
and  expulsion  estabhshed;  while  on  the  other  side  it  is  insisted,  that 
a  constructive  entry  and  expulsion  is  sufficient,  and  that  the  facts  which 
tended  to  prove  it,  should  have  been  left  to  the  jury.  It  is  true  that 
"pleading  is  the  formal  mode  of  alleging  that  on  the  record,  which 
would  be  the  support  or  defence  of  the  party  on  evidence,"  as  de- 
■fined  by  Buller,  J.,  in  1  Term  Rep.  159;  and  the  same  learned  judge 
immediately  after  draws  the  correct  distinction :  "whether  the  evi- 
dence in  each  particular  case  is  a  sufficient  foundation  for  that  support 
or  defence,  is,  a  question  that  does  not  arise  upon  pleading,  but  upon 
the  trial  of  the  issue  afterwards."  In  pleading,  the  legal  effect  of  the 
facts  is  stated,  not  the  facts  themselves.  The  form  of  the  plea,  there- 
fore, does  not  determine  the  kind  of  evidence  necessary  to  establish  it. 
To  support  a  plea  that  the  defendant  never  promised,  he  may  prove 
a  payment,  or  a  performance  of  his  undertaking,  or  some  matters 
which  excused  him  from  its  performance.     *     *     * 

There  are  many  similar  cases,  where  the  proof  of  one  fact  justifies 
the  legal  conclusion  of  another  fact.  This,  then,  is  a  question  of  prin- 
ciple, whether  the  evidence  offered  by  the  defendant  below  tended  in 
any  manner  to  establish  a  constructive  entry  and  eviction  by  the  plain- 
tiff;  for  if  it  did,  it  should  have  been  left  to  the  jury  to  decide  on  its 
effect. 

To  determine  this,  it  seems  only  necessary  to  inquire  what  are  the 
conditions  express  or  implied,  on  which  the  defendant  was  to  pay  the 
rent.  The  agreement  set  forth  in  the  plea,  contains  a  covenant  that 
the  defendant  shall  have  "peaceable,  quiet  and  indisputable  possession" 
of  the  premises.  This  is,  in  its  nature,  a  condition  precedent  to  the 
payment  of  rent;  and  whether  the  possession  was  peaceable  and 
quiet,  was  clearly  a  question  of  fact  for  the  jury.  Such  conduct  of 
the  lessor  as  was  offered  to  be  proved  in  this  case,  went  directly  to 
that  point ;  and  without  saying  at  present,  whether  it  was  or  was  not 
sufficient  to  establish  a  legal  disturbance,  it  is  enough  that  it  tended 
to  that  end,  and  should  have  been  received,  subject  to  such  advice  as 
the  judge  might  give  to  the  jury. 

The  opinion  of  the  supreme  court  proceeds  upon  the  ground  that 
there  must  be  an  actual  physical  eviction,  to  bar  the  plaintiffs ;  and  in 
most  of  the  cases  cited,  such  eviction  was  proved ;  and  all  of  them  show 
that  such  is  the  form  of  the  plea.  But  the  forms  of  pleading  given, 
and  the  cases  cited,  do  not  establish' the  principle  on  which  the  recov- 
ery of  rent  is  refused,  but  merely  furnish  illustrations  of  that  prin- 
ciple, and  exemplifications  of  its  application.  The  principle  itself  is 
deeper  and  more  extensive  than  the  cases.  It  is  thus  stated  by  Baron 
Gilbert,  in  his  essay  on  Rents,  p.  145 :  "A  rent  is  something  given  by 
way  of  retribution  to  the  lessor,  for  the  land  demised  by  him  to  the 
tenant,  and  consequently  the  lessor's  title  to  the  rent  is  founded  upon 
this:  that  the  land  demised,  is  enjoyed  by  the  tenant  during  the  terni 
included  in  the  contract ;   for  the  tenant  can  make  no  return  for  thing 


Ch.  G)  RENTS  605 

he  has  not.  If,  therefore,  the  tenant  be  deprived  of  the  thing  letten, 
the  obHgation  to  pay  the  rent  ceases,  because  such  obhgation  has  its 
force  only  from  the  consideration,  which  was  the  enjoyment  of  the 
thing  demised."  And  from  this  principle,  the  inference  is  drawn, 
that  the  lessor  is  not  entitled  to  recover  rent  in  the  following  cases : 
1st.  If  the  lands  demised  be  recovered  by  a  third  person,  by  a  superior 
title,  the  tenant  is  discharged  from  the  payment  of  rent  after  eviction 
by  such  recovery.  2d.  If  a  part  only  of  the  lands  be  recovered  by  a 
third  person,  such  eviction  is  a  discharge  only  of  so  much  of  the 
rent  as  is  in  proportion  to  the  value  of  the  land  evicted.  3d.  If  the 
lessor  expel  the  tenant  from  the  premises,  the  rent  ceases.  4th.  If 
the  lessor  expel  the  tenant  from  a  part  only  of  the  premises,  the  ten- 
ant is  discharged  from  the  payment  of  the  whole  rent;  and  the  rea- 
son for  the  rule  why  there  shall  be  no  apportionment  of  the  rent  in 
this  case  as  well  as  in  that  of  an  eviction  by  a  stranger,  is,  that  it  is 
the  wrongful  act  of  the  lessor  himself,  "that  no  man  may  be  encour- 
aged to  injure  or  disturb  his  tenant  in  his  possession,  whom,  by  the 
policy  of  the  feudal  law,  he  ought  to  protect  and  defend." 

This  distinction,  which  is  as  perfectly  well  settled  as  any  to  be  found 
in  our  books,  establishes  the  great  principle  that  a  tenant  shall  not  be 
required  to  pay  rent,  even  for  the  part  of  the  premises  which  he  re- 
tains, if  he  has  been  evicted  from  the  other  part  by  the  landlord.  As 
to  the  part  retained,  this  is  deemed  such  a  disturbance,  such  an  injury 
to  its  beneficial  enjoyment,  such  a  diminution  of  the  consideration  upon 
which  the  contract  is  founded,  that  the  law  refuses  its  aid  to  coerce 
the  payment  of  any  rent.  Here  tlien,  is  a  case  where  actual  entry  and 
physical  eviction  are  not  necessary  to  exonerate  the  tenant  from 
the  payment  of  rent;  and  if  tlie  principle  be  correct  as  applied  to  a 
part  of  the  premises,  why  should  not  the  same  principle  equally  apply 
to  the  whole  property  demised,  where  there  has  been  an  obstniction 
to  its  beneficial  enjoyment,  and  a  diminution  of  the  consideration  of 
the  contract,  by  the  acts  of  the  landlord,  although  those  acts  do  not 
amount  to  a  physical  eviction?  If  physical  eviction  be  not  necessary 
in  the  one  case,  to  discharge  the  rent  of  the  part  retained,  why  shoufd 
it  be  essential  in  the  other,  to  discharge  the  rent  of  the  whole?  If  I 
have  not  deceived  myself,  the  distinction  referred  to  settles  and  recog- 
nizes the  principle  for  which  the  plaintiff  in  errof"  contends,  that  there 
may  be  a  constructive  eviction  produced  by  the  acts  of  the  landlord. 

An  eviction  cannot  be  more  than  an  ouster;  and  we  have  the  au- 
thority of  Lord  Mansfield  for  saying  that  there  may  be  a  constructive 
ouster.  In  Cowper,  217,  he  remarks,  "Some  ambiguity  seems  to  have 
arisen  from  the  term  actual  ouster,  as  if  it  meant  some  act  accompanied 
by  real  force,  and  as  if  a  turning  out  by  the  shoulders  were  necessary ; 
but  that  is  not  so :  a  man  can  come  in  by  rightful  possession,  and  yet 
hold  over  adversely  without  a  title,"  &c.     *     *     * 

We  regard  cases  as  containing  the  evidence  of  the  law,  as  evincing 
the  rule  of  decision ;   and  they  are  consulted  to  ascertain  the  principle 


606  RIGHTS  IN  THE  LAND  OF  anotheh  (Part  2 

on  which  that  rule  is  founded.  The  review  of  the  cases  now  made, 
shows  that  the  principle  on  which  a  tenant  is  required  to  pay  rent,  is 
the  beneficial  enjoyment  of  the  premises,  unmolested  in  any  way  by 
the  landlord.  It  is  a  universal  principle  in  all  cases  of  contract,  that  a 
party  who  deprives  another  of  the  consideration  on  which  his  obHga- 
tion  was  founded,  can  never  recover  damages  for  its  non-fulfilment. 
The  total  failure  to  the  consideration,  especially  when  produced  by  the 
act  of  the  plaintiff,  is  a  valid  defence  to  an  action,  except  in  certain 
cases,  where  a  seal  is  technically  held  to  conclude  the  party.  This 
is  the  great  and  fundamental  principle  which  led  the  courts  to  deny 
the  lessor's  right  to  recover  rent  where  he  had  deprived  the  tenant 
of  the  consideration  of  his  covenant,  by  turning  him  out  of  the  pos- 
session of  the  demised  premises.  It  must  be  wholly  immaterial  by 
what  acts  that  failure  of  consideration  has  been '  procjuced ;  and  only 
inquiry  being,  has  it  failed  by  the  conduct  of  the  lessor?  This  is  a 
question  of  fact,  and  to  establish  it  the  proof  offered  in  this  case  was 
certainly  competent.  I  do  not  feel  called  upon  to  say  that  those  facts 
would  have  been  alone  sufficient.  Of  that  the  jury  were  to  judge,  at 
least,  in  the  first  instance;  and  the  question  whether  they  amounted 
to  a  full  and  complete  legal  defence,  might  have  been  presented  in 
another  shape.  The  only  question  for  our  decision  is,  whether  that 
testimony  ought  to  have  been  received  at  all  ?  Believing  that  it  tended 
to  establish  a  constructive  eviction  and  expulsion  against  the  con- 
sent of  the  tenant :  that  it  tended  to  prove  a  disturbance  of  his  quiet 
possession,  and  a  failure  of  the  consideration  on  which  only  the  tenant 
was  obliged  to  pay  rent,  I  am  of  the  opinion  that  it  ought  to  have  been 
received ;  and  that,  therefore,  the  judgment  of  the  supreme  court 
should  be  reversed,  with  the  directions  to  issue  a  venire  de  novo.  *  *  * 
A  majority  were  for  reversal.  Whereupon  it  was  ordered,  that  the 
judgment  of  the  supreme  court  be  reversed;  and  that  a  venire  de  nova 
should  issue  in  the  court  below.* ^ 


EDGERTON  V.  PAGE. 

(Court  of  Aj)peals  of  New  York,  1859.    20  N.  Y.  281.) 

Appeal  from  the  Common  Pleas  of  the  city  and  county  of  New  York. 
Action  to  recover  one  quarter's  rent  of  the  first  floor  of  brick  building 
No.  8  Fulton  street  in  said  city,  for  the  quarter  ending  May  1st,  1855, 
leased  by  the  plaintiff  to  the  defendant  for  one  year  from  May  1st, 
1854,  at  a  yearly  rent  of  $1,500,  payable  quarterly  on  the  first  days  of 
August,  November,  February  and  May.  The  defendant  in  his  answer 
set  out  a  copy  of  the  lease,  by  which  it  appeared  that  the  defendant 
was  to  have  the  privilege  of  renewal  for  one  year  at  the  same  rent. 

41  See  Alger  v.  Kennedy,  49  Vt.  109,  24  Am.  Rep.  117  (1876).  Compare 
Wolf  V.  Eppen.stein,  71  Or.  1,  140  Pac.  751   (1914). 


Ch.  6)  RENTS  607 

The  answer  alleged  that  this  privilege  was  one  of  the  main  induce- 
ments on  the  part  of  the  defendant  to  the  taking  of  the  lease,  and  one 
of  the  principal  causes  of  its  value.  The  answer  further  alleged  that 
the  plaintiff,  between  the  first  days  of  February  and  May,  1855,  was  the 
occupant  of  the  entire  upper  part  of  the  building  in  question,  and  also 
of  the  adjoining  building;  that  between  those  days,  and  while  the  de- 
fendant occupied  the  demised  premises,  the  plaintiff  wantonly,  ma- 
liciously and  negligently  permitted  certain  water  pipes,  coming  down 
through  the  rear  of  tlie  building  and  communicating  with  a  sewer 
under  the  demised  premises,  and  which  pipes  were  used  for  carrying 
off  the  waste  water  from  the  upper,  stories  of  the  building,  to  get  out 
of  order  and  leak:  and  that  the  plaintiff'  knowing  this,  maliciously 
and  negligently  permitted  large  quantities  of  water  and  filth  to  flow 
through  the  pipes  which  leaked  therefrom  into  the  demised  premises, 
injuring  the  property  of  the  defendant,  deposited  therein,  to  the  amount 
of  $390,  interfering  with  and  depriving  the  defendant  of  the  bene- 
ficial enjoyment  of  the  premises:  that  the  plaintiff  could,  by  ordinary 
care  and  prudence,  have  prevented  the  injury,  and  that  the  defendant 
requested  the  plaintiff  to  repair  the  pipes  or  abstain  from  their  use 
which  he  neglected  to  do :  that  the  defendant  was  injured  to  the 
amount  of  $250  in  the  prosecution  of  the  business  during  the  quarter 
in  question.  The  answer  further  alleged,  that  at  divers  times  during 
the  quarter  in  question,  large  quantities  of  water,  filthy  and  otherwise, 
were  thrown  out  by  the  plaintiff  and  his  servants,  from  the  rear  win- 
dows of  the  portion  of  the  building  occupied  by  the  plaintiff',  so  neg- 
ligently and  maliciously  as  to  run  into  the  demised  premises,  by  which 
the  defendant  was  injured  to  the  amount  of  $150:  that  the  defendant 
was  compelled,  by  the  injuries,  to  abandon  the  possession  of  the  prem- 
ises on  or  about  1st  of  May,  1855,  thereby  losing  the  benefit  and  be- 
ing deprived  of  the  privilege  of  renewal  created  by  the  lease  which'  he 
intended  to  avail  himself  of  but  for  said  injuries.  The  answer  insists 
upon  the  facts  as  a  defence  to  the  action,  and  also  as  a  counterclaim. 
The  plaintiff  demurred  to  the  answer  and  assigned  several  causes, 
among  them  that  the  facts  did  not  constitute  a  defence,  nor  a  coun- 
ter-claim available  to  tiie  defendant  in  the  action.  The  cause  was  heard 
at  special  term,  and  judgment  given  for  the  defendant  upon  the  de- 
murrer. The  plaintiff  appealed;  the  court  at  general  term  reversed 
the  judgment,  and  gave  judgment  for  the  plaintiff,  from  which  the 
defendant  appealed  to  this  court. 

Grover,  T.  The  demurrer  presents  two  questions:  First,  whether 
the  facts  alleged  in  the  answer  constitute  a  defense;  second,  whether 
they  constitute  a  counter-claim,  available  to  the  defendant  by  way  of 
recoupment  or  otherwise  in  this  action.  The  rule  has  long  been  settled, 
that  a  wrongful  eviction  of  the  tenant  by  the  landlord,  from  the 
whole  or  any  part  of  the  demised  premises,  before  the  rent  becomes 
due,  precludes  a  recovery  thereof  until  the  possession  is  restored. 
Christopher  v.  Austin,  11  N.  Y.  217.    Whether  this  eviction  must  be 


G08  RIGHTS   IN  THE  LAND  OF  ANOTHER  (Part  2 

actual  by  the  forcible  removal  of  the  tenant  by  the  landlord  from  the 
demised  premises  or  a  portion  thereof,  was  not  settled  in  this  State 
until  the  case  of  Dyett  v.  Pendleton,  8  Cow.  728.  In  that  case,  the 
principle  was  established  by  the  Court  for  the  Correction  of  Errors, 
that  when  the  lessor  created  a  nuisance  in  the  vicinity  of  the  demised 
premises,  or  was  guilty  of  acts  tliat  precluded  tlie  tenant  from  a  bene- 
ficial enjoyment  of  the  premises,  in  consequence  of  which  the  tenant 
abandoned  the  possession  before  the  rent  became  due,  tlie  lessor's  ac- 
tion for  the  recovery  of  the  rent  was  barred,  although  the  lessor  had 
not  forcibly  turned  the  tenant  out  of  possession.  Ever  since  that  case, 
this  has  been  considered  as  a  settled  rule  of  law  binding  upon  all  the 
courts  of  the  State.  Such  act  of  the  lessor  accompanied  by  an  aban- 
donment of  possession  by  the  lessee,  is  deemed  a  virtual  expulsion  of 
the  tenant,  and,  equally  with  an  actual  expulsion,  bars  the  recovery 
of  rent.  The  reason  of  the  rule  is,  that  the  tenant  has  been  deprived 
of  the  enjoyment  of  the  demised  premises  by  the  wrongful  act  of  the 
landlord ;  and  thus  the  consideration  of  his  agreement  to  pay  rent  has 
failed.  In  case  of  eviction  from  a  portion  of  the  premises,  the  law  will 
not  apportion  the  rent  in  favor  of  the  wrongdoer. 

In  this  case,  the  answer  shows  that  the  defendant  continued  to  occupy 
the  premises  for  the  whole  time  for  which  the  rent  demanded  ac- 
crued. In  this,  the  case  differs  from  Dyett  v.  Pendleton  (supra).  I 
cannot  see  upon  what  principle  the  landlord  should  be  absolutely  bar- 
red from  a  recovery  of  rent,  when  his  wrongful  acts  stop  short  of  de- 
priving the  tenant  of  the  possession  of  any  portion  of  the  premises. 
The  injury  inflicted  may  be  to  an  amount  much  larger  than  the  whole 
rent,  or  it  may  be  of  a  trifling  character.  In  all  the  cases  where  it 
has  been  held  that  tlie  rent  was  extinguished  or  suspended,  the  tenant 
has  been  deprived,  in  whole  or  in  part,  of  the  possession  by  the  wrong- 
ful act  of  the  landlord,  either  actually  or  constructively.  There  is  no 
authority  extending  the  rule  beyond  this  class  of  cases.  It  would  be 
grossly  unjust  to  permit  a  tenant  to  continue  in  the  possession  of  the 
premises,  and  shield  himself  from  the  payment  of  rent  by  reason  of 
the  wrongful  acts  of  the  landlord  impairing  tlie  value  of  the  use  of  the 
premises  to  a  much  smaller  amount  than  the  rent.  This  must  be  the 
result  of  the  rule  claimed  by  the  defendant.  The  moment  it  is  con- 
ceded that  the  injury  must  be  equal  to  the  amount  of  the  rent,  the  rule 
is  destroyed.  It  would  then  only  be  a  recoupment  to  the  extent  of  the 
injury.  In  Ogilvie  v.  Hull  (5  Hill,  52),  Nelson,  Ch.  J.,  in  giving  the 
opinion  of  the  court,  says :  That  no  general  principle  is  better  settled, 
or  more  uniformly  adhered  to,  than  that  there  must  be  an  entry  and 
expulsion  of  the  tenant  by  the  landlord,  or  some  deliberate  disturb- 
ance of  the  possession  depriving  the  tenant  o£  tlie  beneficial  enjoy- 
ment of  the  demised  premises,  to  operate  a  suspension  or  extinguish- 
ment of  the  rent.  The  rule  contended  for  by  the  defendant  is  a  very 
different  one,  suspending  or  extinguishing  the  rent  whenever  the  en- 
joyment, in  consequence  of  the  tortious  acts  of  the  lessor,  becomes 


Ch.  6)  EENTS  609 

less  beneficial  than  it  otherwise  would  have  been.  The  true  rule,  from 
all  the  authorities,  is  that  while  the  tenant  remains  in  possession  of 
the  entire  premises  demised,  his  obligation  to  pay  rent  continues. *- 

The  remaining  question  is  whether  a  counter-claim,  arising  from 
the  fact-s  contained  in  the  answer,  is  available  to  the  defendant  in  this 
action.  By  section  149  of  the  Code,  the  defendant  is  permitted  to  in- 
clude in  his  answer  new  matter,  constituting  a  counter-claim.  Sec- 
tion 150  defines  the  class  of  demands  which  are  embraced  in  section  149, 
as  counter-claims.  A  counter-claim  must  be  1st,  a  cause  of  action 
arising  out  of  tlie  contract  or  transaction  set  forth  in  tlie  complaint  as 
the  foundation  of  the  plaintiff's*  claim,  or  connected  with  the  subject  of 
the  action ;  or  2d,  in  an  action  arising  on  contract,  any  other  cause  of 
action  arising  also  on  contract  and  existing  at  the  commencement  of 
the  action.  The  demand  of  the  defendant,  set  out  in  the  answer,  does 
not  arise  out  of  the  contract  set  forth  in  the  complaint.  That  con- 
tract is  for  the  payment  of  rent,  upon  a  lease  of  the  demised  prem- 
ises. The  defendant's  demands  arise  from  the  wrongful  acts  of  the 
plaintiff  in  permitting  water  to  leak  and  run  into  the  premises,  and  in 
causing  or  permitting  it  to  be  thrown  upon  the  premises  and  property 
of  the  defendant.  These  acts  are  entirely  independent  of  the  con- 
tract of  leasing  upon  which  the  action  is  brought.  The  demands  are  not 
connected  with  the  subject  of  the  action;  that  is,  the  rent  agreed  to 
be  paid  for  the  use  of  the  premises.  The  defendant's  demands  are  for 
a  series  of  injuries  to  his  property  deposited  upon  the  premises,  and 
for  impairing  the  value  of  the  possession.  It  would  be  a  very  liber- 
al construction  to  hold  that  in  an  action  for  rent,  injuries  from  tres- 
passes committed  by  the  lessor  upon  the  demised  premises  might  be 
interposed  as  a  counterclaim.  The  acts  of  the  plaintiff  in  this  case  are 
of  a  similar  nature.  They  are  either  acts  of  trespass  or  negligence, 
from  which  the  injuries  to  the  defendant  accrued.  Such  a  construc- 
tion could  only  be  supported  by  the  idea,  that  the  subject  of  the  ac- 
tion was  the  value  of  the  use  of  the  premises.  But  when  there  is  an 
agreement  as  to  the  amount  of  rent,  that  value  is  immaterial.  Unless 
the  acts  of  the  defendant  amount  to  a  breach  of  the  contract  of  letting, 
they  are  not  connected  with  the  subject  of  the  action.  In  the  case  of 
The  Mayor,  etc.,  of  New  York  v.  Mabie,  13  N.  Y.  151,  64  Am.  Dec. 
538,  it  was  held  by  this  court  that  a  covenant  for  quiet  enjoyment  by 
the  lessor  was  implied  in  a  lease  under  seal,  for  a  term  not  exceeding 

*2  Compare  Lumpkin  v.  Provident  Loan  Soc.,  Inc.,  15  Ga.  App.  816,  84  S. 
E.  216  (1915).  See  Halligan  v.  Wade,  21  111.  470,  74  Am.  Dec.  108  (1859) ; 
De  Witt  V.  Pierson,  112  Mass.  8,  17  Am.  Rep.  58  (1873). 

A.  leased  a  building  to  B.  B.  subleased  portions  to  C.  and  D.  Owing  to 
A.'s  wrongful  failure  to  keep  the  roof  in  repair,  that  part  occupied  by  B. 
became  untenantable,  and  B.  abandoned  the  premises.  Held,  B.  is  entitled 
against  A.  to  have  the  rent  proportionally  reduced.  Dolph  v.  Barry,  165 
Mo.  App.  659,  148  S.  W.  196  (1912). 

Compare  Weiss  v.  Zenith  Realty  Co.,  129  Minn,  486,  152  N.  W.  869  (1915), 

BiG.RlGHTS — 39 


GIO  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

three  years,  since  as  well  as  before  the  Revised  Statutes ;  that  this 
covenant  was  broken  by  an  interference  with  possession  by  the  lessor 
under  a  claim  of  right;  consequently,  that  damages  sustained  from 
such  acts  might  be  recovered  in  an  action  for  rent.  It  was  remarked 
by  Denio,  J.,  in  giving  the  opinion  in  that  case,  that  it  is  not,  however, 
every  mere  trespass  by  the  lessor  upon  the  demised  premises  which 
will  amount  to  a  breach  of  this  covenant;  although  the  covenantor  can- 
not avail  himself  of  tlie  subterfuge,  that  his  entry  was  unlawful,  and 
he,  therefore,  a  trespasser,  to  avoid  the  consequences  of  his  own  wrong, 
still,  to  support  the  action  of  covenant^  the  entry  must  be  made  under 
an  assumption  of  title.  For  tliis,  the  learned  judge  cites  Piatt  on  Cove- 
nants, 319,  320.  There  is  nothing  in  the  answer  in  this  case  tending 
to  show  that  any  of  the  acts  of  the  defendant  were  done  under  any 
claim  of  right  whatever.  They  did  not,  therefore,  amount  to  a  breach 
of  the  contract  created  by  the  lease,  and  the  injuries  sustained  by  the 
defendant  do  not,  therefore,  constitute  a  counter-claim  connected  with 
the  subject  of  the  action.  The  judgment  should  be  affirmed. 
Judgment  affirmed. 


BASS  v.  ROLLINS. 

(Supreme  Court  of  Minnesota,  1S95.     63  Minn.  226,  65  N.  W.  34S.) 

Start,  C.  J.  Action  to  recover  $50  for  twa  months'  rent.  Trial 
by  the  court  without  a  jury,  and  judgment  for  the  defendant,  from 
which  the  plaintiff  appealed.  The  here  material  facts,  as  found  by  the 
court,  are  that  on  November  1,  1894,  the  plaintiff  leased  to  the  defend- 
ant a  certain  apartment  for  a  monthly  rental  of  $25,  payable  in  ad- 
vance on  the  first  secular  day  of  each  month;  that  it  was  a  part  of 
the  agreement  of  such  leasing  that  the  plaintiff  should  furnish  to  the 
defendant  proper  and  sufficient  heat  while  he  was  occupying  the  de- 
mised premises ;  that  at  times  during  the  month  of  December,  1894, 
and  up  to  the  6th'  day  of  February,  1895,  the  plaintiff  failed  to  provide 
such  heat,  although  repeatedly  notified  by  the  defendant  so  to  do,  but 
kept  the  premises  during  such  times,  at  such  a  low  temperature  as  to 
render  the  same  unfit  for  occupancy ;  and  that,  by  reason  of  such  fail- 
ure, the  defendant  was  compelled  to  and  did  vacate  the  premises  on  the 
6th  day  of  February,  1895.  The  defendant  paid  all  rent  except  for 
the  month  of  February. 

We  concede,  for  the  purposes  of  this  case,  without  so  deciding, 
that  the  agreement  to  furnish  to  the  defendant  sufficient  heat  was  not 
a  condition  precedent  to  the  payment  of  rent,  but  the  trial  court  has 
not  found  that  the  defendant,  by  remaining  in  possession  of  the  prem- 
ises after  February  1st,  elected  to  keep  them  for  that  month.  Nor 
can  such  fact  be  inferred  from  the  facts  found  by  the  court.  In  this 
respect  the  case  differs  from  Flint  v.  Sweeney,  49  Minn.  509,  52  N, 
W.  136,  which  was  a  case  where  the  condition  of  the  demised  premises 


Ch.  6)  RENTS  611 

had  not  materially  changed  for  several  months,  and  it  was  held  that 
the  lessee,  by  continuing  the  occupancy  of  the  premises  after  the  end 
of  the  current  month,  elected  to  remain  for  another  month,  and  was 
liable  for  that  month's  rent.  In  the  case  at  bar  it  was  only  at  times  that 
the  lessor  failed  to  furnish  a  proper  amount  of  heat.  It  was  a  mere 
neglect  of  duty,  which  tlie  lessor  might  have  corrected  at  any  time,  and 
the  lessee  did  not,  as  a  matter  of  law,  elect  to  keep  the  premises  for  the 
month  of  February  if  the  lessor  did  not  keep  them  warmed,  and  he 
had  a  right  to  vacate  them  upon  the  lessor's  failure  to  do  so.  The 
court  found  that,  on  the  6th  day  of  February,  the  defendant  was  com- 
pelled to  and  did  vacate  the  premises,  for  the  reason  that  they  were 
unfit  for  occupancy  by  reason  of  the  plaintiff's  failure  to  keep  them 
warm.  This  amounted  to  an  eviction  by  the  plaintiff,  and  he  is  not 
entitled  to  recover  for  rent  accruing  after  such  eviction.  It  is  not  an 
answer  to  this  proposition  to  say  that  $25  was  due  for  rent  six  days 
before  the  eviction,  for,  suppose  that,  on  the  1st  day  of  February,  the 
premises  were  properly  heated,  and  the  defendant  paid  the  month's 
rent  on  that  day,  but  on  the  next  day  the  plaintiff,  having  received  the 
rent,  had  shut  off  tlie  heat,  and  thereby  forced  the  defendant  to  vacate 
February  6ih,  and  he  had  thereupon  brought  an  action  for  damage, 
would  he  not  have  been  entitled  to  recover  at  least  $20  for  the  rent, 
which  he  had  paid  in  advance  for  the  four-fifths  of  a  month  that  he 
did  not  occupy  the  premises?  But  tjie  $25  was  not  paid.  Then,  why 
should  the  plaintiff  recover  in  this  action  that  which,  !f  the  defendant 
had  paid  on  the  due  day,  he  could  recover  back  from  the  plaintiff'  ?  It 
may  be  suggested  that  this  line  of  reasoning  would  lead  to  the  con- 
clusion that  the  plaintiff  was  entitled  to  recover  for  one-fifth  of  a 
month's  rent,  $5.  This  point  is  not  raised  by  the  plaintiff.  Her  claim 
is  that  she  was  entitled  to  at  least  a  full  month's  rent.  If  her  claim 
was  only  for  $5,  the  maxim  "de  minimis"  would  be  applicable,  in  this 
court,  to  it. 

Judgment  affirmed.** 


STEWART  V.  CHILDS  CO. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1914.     S6  N.  J.  Law,  64S,  1)2 
Atl.  392,  L.  R.  A.  1915C,  649.) 

BLACK,  J.  The  error  complained  of  by  the  appellant  in  this  case 
is  the  ruling  of  the  trial  court  dii-ecting  a  verdict  for  the  plaintiff.  The 
suit  was  instituted  in  the  Hudson  circuit  court  to  recover  rent,  due  un- 
der a  written  lease  for  the  premises  No.  53  Newark  avenue,  Jersey 
City.    The  lease  was  dated  the  26th  day  of  December,  1901 ;  the  term 

48ACC.:     Jackson  v.  Paterno,  58  Misc.  Rep.  201,  108  N.  Y.  Supp.  1073  (1908). 

See  Delmar  Investment  Co.  v.  Blninentield,  118  Mo.  App.  308,  94  S.  W. 
S23  (190ni :  Metropole  Const.  Co.  v.  Harti^an,  S3  X.  J.  Law.  409,  85  Atl.  313 
(1912);  West  Side  Sav.  Bank  v.  Newton,  76  N.  Y.  616  (1879). 


612  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part   2 

commencing  on  the  1st  day  of  February,  1902,  ending  on  the  1st  day 
of  May,  1922,  at  the  yearly  rental  of  $3,000.  The  lease  contained  these 
covenants :  By  the  tenant :  "That  the  tenant  shall  pay  the  rent  afore- 
said as  the  same  shall  fall  due."  By  the  landlord :  "The  basement  shall 
be  waterproof,  and  not  less  than  7  feet  high.  And  he  does  hereby  guar- 
antee that  he  will  at  all  times  during  the  said  lease  keep  the  said  cel- 
lar waterproof  at  his  own  expense."  The  evidence  of  the  defendant 
showed  tliat  there  was  a  breach  of  the  above  covenant  on  the  part 
of  the  landlord  to  keep  the  cellar  waterproof  during  the  term  of  the 
lease.  The  trial  court  held  that  the  two  covenants  were  independent. 
The  breach  of  the  covenant  to  keep  the  cellar  waterproof  was  not  a 
defense  to  an  action  for  rent.  The  judge  at  the  trial,  therefore,  directed 
a  verdict  for  $4,350  in  favor  of  the  plaintiff.  It  is  this  ruling  of  the 
trial  judge  which  the  defendant  alleges  is  erroneous  in  law,  and  seeks 
to  have  the  judgment  reversed. 

The  defendant  contends,  to  use  the  words  of  the  brief,  that  the  fail- 
ure of  the  landlord  to  do  what  is  lawfully  required  of  him,  either  by 
the  terms  of  the  lease  or  otherwise,  which  renders  the  demised  premises 
unfit  for  the  purpose  for  which  they  are  leased,  or  which  seriously  in- 
terferes with  the  beneficial  enjoyment  thereof,  in  consequence  of  which 
the  tenant  abandons  the  premises,  constitutes  an  eviction  by  construc- 
tion of  law,  and  releases  the  tenant  from  the  obligation  under  the  lease 
to  pay  rent  accruing  thereafter,  while  the  plaintiff  contends  that  the 
failure  by  the  landlord  to  perform  his  guaranty  does  not  constitute  an 
eviction  in  fact  or  constructively. 

There  are  numerous  cases  in  this  and  other  jurisdictions  illustrating 
the  principle  of  eviction,  both  actual  and  constructive,  applied  as  a 
defense,  to  an  action  for  the  nonpayment  of  rent.  Chief  Justice  Tarvis, 
in  the  case  of  Upton  v.  Townend  and  Greenless,  17  C.  B.  30,  51, 
after  speaking  of  a  physical  expulsion  or  a  motion,  in  reference  to  a 
constructive  eviction,  said : 

"I  think  it  may  be  taken  to  mean  this :  Not  a  mere  trespass  and 
nothing  more,  but  something  of  a  grave  and  permanent  character  done 
by  the  landlord  with  the  intention  of  depriving  the  tenant  of  the  enjoy- 
ment of  the  demised  premises." 

This  definition  of  a  constructive  eviction  was  cited  with  approval  by 
pur  Supreme  Court  in  the  cases  of  Meeker  v.  Spalsbury,  66  N.  J.  Law, 
63,  48  Atl.  1026;  Metropole  Construcfion  Co.  v.  Hartigan,  83  N.  J. 
Law,  411,  85  Atl.  313. 

The  record  shows  that  the  premises  were  fitted  for  and  used  as  a 
Childs  restaurant.  Soon  after  the  place  was  opened  for  business,  there 
was  water  in  the  basement,  which  was  taken  care  of,  by  the  tenant, 
\yith  a  hand  pump ;  that  at  times  it  got  two  feet  deep ;  that  the  tenant 
moved  out  of  the  premises  in  May,  1904,  and  resumed  again  in  Novem- 
ber, 1904.  From  1905  to  1909  the  premises  were  sublet.  The  tenant 
abandoned  the  premises  in  1909.  In  October,  1910,  there  were  three 
feet  of  water  in  the  cellar.     The  presence  of  the  water  in  the  cellar 


Ch.  C)  BENTS  613 

was  wholly  due  to  the  fact  that  the  walls  and  foundations  were  not 
waterproof.  The  cellar  was  necessary  for  the  conduct  of  the  business 
of  the  defendant.  The  cellar  was  used  in  part  for  storage,  but  mainly 
for  the  steam  apparatus  that  perfects  the  coffee.  There  is  no  evidence 
that  the  landlord  in  any  way  was  responsible  for  the  water  in  the 
cellar,  except  that  the  walls  and  foundations  were  not  waterproof,  ac- 
cording to  the  guaranty.  The  facts  in  the  record,  on  which  the  judge 
at  the  trial  was  called  upon  to  make  a  ruling,  tested  by  the  rule  above 
cited,  fall  short  of  making  out  either  an  actual  or  constructive  evic- 
tion. We  are  unable  to  find  in  the  record  any  evidence  that  shows  that 
the  landlord,  or  by  his  procurement,  did  anything  with  the  intention  of 
depriving  the  tenant  of  the  enjoyment  of  the  premises.  A  breach  of 
his  covenant  was  not  a  defense  to  the  action.  The  ruling  of  the  trial 
court  in  directing  a  verdict  for  the  plaintiff  was  not  error. 
No  error  appearing  in  the  record,  the  judgment  is  affirmed.** 


UNIVERSITY  CLUB  OF  CHICAGO  v.  DEAKIN. 

(Supreme  Court  of  Illinois,  1914.    265  111.  257,  106  N.  E.  790,  L.  R.  A.  1915C, 

854.) 

Cooke,  J.  Defendant  in  error,  the  University  Club  of  Chicago, 
brought  suit  in  the  municipal  court  of  Chicago  against  Earl  H.  Deakin, 
the  plaintiff  in  error,  to  recover  rent  alleged  to  be  due  under  a  lease. 
A  trial  was  had  before  the  court  without  a  jur}--  and  resulted  in  a  judg- 
ment for  $2,007.66.  Deakin  prosecuted  an  appeal  to  the  Appellate 
Court  for  the  First  District,  where  the  judgment  of  the  municipal 
court  was  affirmed.  A  writ  of  certiorari  having  been  granted  by  this 
court,  the  record  has  been  brought  here  for  review. 

On  March  31,  1909,  defendant  in  error  leased  to  plaintiff  in  error, 
for  a  term  of  one  year,  a  storeroom  in  its  building  at  the  corner  of 
Michigan  avenue  and  Monroe  street,  in  the  city  of  Chicago,  at  a  rental 
of  $5,000  for  the  year.  The  lease  provided  that  plaintiff  in  error 
should  use  the  room  for  a  jewelry  and  art  shop  and  for  no  other  pur- 
pose.    It  also  contained  the  following  clause,  numbered  12 : 

**  Compare  Skally  v.  Shute,  132  Mass.  367  (1S82). 

"While  the  breach  of  the  landlord's  agreement  to  make  repairs  or  im- 
provements for  the  benefit  of  the  tenant  may  not  relieve  the  tenant  in 
possession  from  his  liability  to  pay  rent,  nevertheless  where  the  failure  to 
repair  amounts  to  a  constructive  eviction,  the  tenant  will  be  justified  in 
leaving  the  premises  and  his  liability  for  rent  will  thereupon  terminate. 
*  ♦  ♦  It  has  been  said  that  constructive  eviction  results  when  the  lessor 
renders,  the  enjoyment  of  the  premises  impossible,  or  diminishes  such  en- 
jovraent  to  a  material  degree."  Jagsard,  J.,  in  Rea  v.  Algren,  104  Minn. 
316,  317,  116  N.  W.  580,  124  Am.  St.  Rep.  627  (190S).  Ace:  Bissell  v.  Llovd, 
100  111.  214  (1881) ;  Piper  v.  Fletcher,  115  Iowa,  203.  88  N.  W.  380  (1901). 
Compare  Lewis  v.  Chisholm,  68  Ga.  40  (1881) ;  Lincoln  Trust  Co.  v.  Nathan, 
175  Mo.  32.  74  S.  W.  1007  (1903) ;  Arbenz  v.  Exley,  Watkins  &  Co.,  52  W.  Va. 
476,  44  S.  E.  149,  61  L.  R.  A.  957   (1903). 


614  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

"Lessor  hereby  agrees  during  the  term  of  this  lease  not  to  rent  any 
other  store  in  said  University  Club  building  to  any  tenant  making  a 
specialty  of  the  sale  of  Japanese  or  Chinese  goods  or  pearls." 

Shortly  after  this  lease  was  made  defendant  in  error  leased  to 
one  Sandberg,  for  one  year,  a  room  in  the  University  Club  building, 
two  doors  from  the  corner  at  a  rental  of  $2,500.  The  following  pro- 
vision was  inserted  in  the  Sandberg  lease : 

"It  is  further  distinctly  understood  and  agreed  by  and  between  the 
parties  hereto  tliat  at  no  time  during  the  term  of  this  lease  will  the 
lessee  herein  use  the  demised  premises  for  a  collateral  loan  or  pawn- 
shop or  make  a  specialty  therein  of  the  sale  of  pearls." 

On  May  1,  1909,  being  the  first  day  of  the  term  of  the  lease,  plain- 
tiff in  error  took  possession  of  the  premises  and  thereafter  paid  the 
rent,  in  monthly  installments,  for  May  and  June.  During  the  latter 
part  of  June  plaintiff  in  error,  through  his  attorney,  sought  to  obtain 
from  defendant  in  error  a  cancellation  of  his  lease  on  the  ground  that 
by  leasfng  a  room  in  the  University  Club  building  to  Sandberg  and 
permitting  him  to  display  and  sell  pearls  therein  defendant  in  error 
had  violated  the  provision  of  plaintiff  in  error's  lease  above  quoted, 
and  that  for  such  violation  plaintiff  in  error  was  entitled  to  terminate 
the  lease.  Defendant  in  error  refused  to  cancel  the  lease,  and  on  June 
30th  plaintiff  in  error  vacated  the  premises,  surrendered  the  keys,  and 
refused  to  pay  any  further  installments  of  rent.  This  suit  was  brought 
to  enforce  payment  of  subsequent  installments  of  rent  accruing  under 
the  lease  for  the  time  the  premises  remained  unoccupied  after  June 
30th. 

The  evidence  offered  by  plaintiff  in  error  tended  to  show  that 
Sandberg  had  made  a  specialty  of  the  sale  of  pearls  in  connection  with 
the  conduct  of  his  general  jewelry  business  ever  since  he  took  pos- 
session of  the  room  leased  to  him,  and  that  plaintiff  in  error  vacated 
the  premises  and  surrendered  possession  because  of  the  failure  of 
defendant  in  error  to  enforce  the  twelfth  clause  of  his  lease.  The 
evidence  offered  by  defendant  in  error  tended  to  prove  that  Sandberg 
had  not  made  a  specialty  of  tl^e  sale  of  pearls,  and  that  when  plaintiff 
in  error  first  made  known  his  desire  to  assign  or  cancel  his  lease  he 
gave  as  his  only  reason  that  his  health  was  failing  and  that  he  had 
been  advised  by  his  physician  to  leave  the  city  of  Chicago. 

Propositions  were  submitted  to  the  court  by  both,  parties  to  be 
held  as  the  law  of  the  case.  The  court  held,  at  the  request  of  plain- 
tiff in  error,  that  the  lease  sued  upon  was  a  bilateral  contract,  and  up- 
on a  breach  of  an  essential  covenant  thereof  by  the  lessor  the  lessee 
had  a  right  to  refuse  further  to  be  bound  by  its  terms  and  to  surren- 
der possession  of  the  premises,  and  that  a  breach  of  the  twelfth 
clause  of  the  lease  would  be  a  good  defense  to  an  action  for  rent  if 
the  tenant  surrendered  possession  of  the  premises  within  a  reasonable 
time  after  discovery  of  the  breach.  The  court  refused  to  hold  as  law 
propositions  submitted  by  defendant  in  error  stating  the  converse  of 


Ch.  6)  RENTS  C15 

the  propositions  so  held  at  the  request  of  plaintiff  in  error.  The 
court  properly  held  that  the  lease  in  question  was  a  bilateral  contract. 
It  was  executed  by  both  parties  and  contained  covenants  to  be  per- 
formed by  each  of  them.  The  propositions  so  held  with  reference  to 
the  effect  of  a  breach  of  the  twelfth  clause  of  the  lease  also  correctly 
stated  the  law.  By  holding  these  propositions  the  court  properly 
construed  the  twelfth  clause  as  a  vital  provision  of  the  lease  and  held 
that  a  breach  of  that  provision  by  the  lessor  would  entitle  the  lessee 
to  rescind.  Where  there  is  a  failure  to  comply  with  a  particular  pro- 
vision of  a  contract  and  there  is  no  agreement  that  the  breach  of 
that  term  shall  operate  as  a  discharge,  it  is  always  a  question  for  the 
courts  to  determine  whether  or  not  the  default  is  in  a  matter  which 
is  vital  to  the  contract.  City  of  Belleville  v.  Citizens'  Horse  Railway 
Co.,  152  111.  171,  38  N.  E.  584,  26  L.  R.  A.  681 ;  People  v.  Central 
Union  Telephone  Co.,  232  111.  260,  83  N.  E.  829.  While  there  was 
no  provision  in  this  contract  that  plaintiff  in  error  should  have  the 
option  to  terminate  it  if  the  terms  of  the  twelfth  clause  were  not 
observed,  it  is  apparent  that  it  was  the  intention  of  the  parties  to 
constitute  this  one  of  the  vital  provisions  of  the  lease.  It  was  con- 
cerning a  matter  in  reference  to  which  the  parties  had  a  perfect  right 
to  contract,  and  it  will  be  presumed  that  plaintiff  in  error  would 
not  have  entered  into  the  contract  if  this  clause  had  not  been  made 
a  part  of  it.  It  is  such  an  essential  provision  of  the  contract  that  a 
breach  of  it  would  warrant  plaintiff  in  error  in  rescinding  the  con- 
tract and  surrendering  possession  of  the  premises. 

The  court  was  not  asked  to  make  any  finding  of  fact,  and  there  is 
nothing  in  the  record  to  indicate  that  the  judgment  is  based  upon  any 
finding  of  fact.  Whether  Sandberg  had,  in  fact,  made  a  specialty  of 
the  sale  of  pearls  was  one  of  the  controverted  questions  in  the  case. 
One  of  the  propositions  submitted  by  defendant  in  error  and  held 
by  the  court  stated  that  the  conduct  of  a  general  jewelry  business  was 
not  "making  a  specialty  of  the  sale  of  pearls,"  within  the  meaning 
of  the  words  quoted  as  they  were  used  in  the  twelfth  clause  of  plain- 
tiff in  error's  lease.  This  cannot  be  construed  as  a  holding  that  Sand- 
berg did  not,  in  fact,  in  addition  to  his  conduct  of  a  general  jewelry 
business,  make  a  specialty  of  the  sale  of  pearls. 

The  following  proposition  was  submitted  by  defendant  in  error 
and  held  by  the  court  as  the  law  of  the  case : 

"That  plaintiff  performed  all  the  obligations  imposed  upon  it  by  its 
covenant  that  it  would  not  rent  any  other  store  in  its  building  to  a 
tenant  making  a  specialty  of  the  sale  of  pearls,  by  incorporating  in  its 
lease  to  the  second  tenant  that  said  second  tenant  should  not  make 
a  specialty  of  the  sale  of  pearls  in  the  demised  premises." 

From  a  consideration  of  all  the  propositions  of  law  held  and 
refused,  it  appears  that  the  judgment  of  the  trial  court  was  reached 
from  the  application  of  the  proposition  just  quoted  to  the  facts  in 
the  case.    The  court  erred  in  holding  this  proposition  as  the  law.     By 


616  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

covenanting  with  plaintiff  in  error  not  to  rent  any  other  store  in  this 
building,  during  the  term  of  plaintiff  in  error's  lease,  to  any  tenant 
inaking  a  specialty  of  the  sale  of  pearls,  defendant  in  error  assumed  an 
obligation  which  could  not  be  discharged  by  simply  inserting  in  the 
contract  with  the  second  tenant  a  covenant  that  such  tenant  should 
not  make  a  specialty  of  the  sale  of  pearls.  It  was  incumbent  upon 
it  to  do  more  than  to  insert  this  provision  in  the  second  lease.  By 
-the  terms  of  its  contract  with  plaintiff  in  error  it  agreed  that  no  other 
portion  of  its  premises  should  be  leased  to  any  one  engaged  in  tlie_ 
prohibited  line  of  business,  and,  if  it  failed  to  prevent  any  subse- 
quent tenant  from  engaging  in  the  business  of  making  a  specialty  of 
the  sale  of  pearls,  it  did  so  at  the  risk  of  plaintiff  in  error  terminating 
his  lease  and  surrendering  possession  of  the  premises. 

This  precise  question  has  never  been  passed  upon  by  this  court, 
so  far  as  we  are  able  to  ascertain.  Defendant  in  error  cites  and 
relies  upon  Lucente  v.  Davis,  101  Md.  526,  61  Atl.  622,  which  sup- 
ports its  theory.  We  cannot  yield  our  assent  to  the  doctrine  there 
announced.  Defendant  in  error  cannot  escape  its  obligation  by  the 
mere  insertion  of  a  clause  in  the  lease  with  the  second  tenant  pro- 
hibiting him  from  engaging  in  the  line  of  business  named.  Plaintiff 
in  error  contracted  for  the  exclusive  right  to  engage  in  this  particular 
business  in  that  building.  There  was  no  privity  between  him  and 
Sandberg,  and  he  was  powerless  to  enforce  the  provisions  of  the  con- 
tract between  defendant  in  error  and  Sandberg.  It  is  idle  to  say  that 
an  action  for  damages  for  a  breach  of  contract  would  afford  him 
ample  remedy.  He  contracted  with  defendant  in  error  for  the  sole 
right  to  engage  in  this  specialty  in  its  building,  and,  if  defendant  in 
error  saw  fit  to  ignore  that  provision  of  the  contract  and  suffer  a 
breach  of  the  same,  plaintiff  in  error  had  the  right  to  terminate  his 
lease,  surrender  possession  of  the  premises,  and  refuse  to  further 
perform  on  his  part  the  provisions  of  the  contract. 

For  the  errors  indicated,  the  judgment  of  the  Appellate  Court  and 
the  judgment  of  the  municipal  court  are  reversed,  and  the  cause  is 
remanded  to  the  municipal  court  for  a. new  trial. 

Reversed  and  remanded.*' 

46  See  Lucente  v.  Davis.  101  Md.  .526,  61  Atl.  622  (1905).  Compare  Hall 
V.  Ewin,  37  Ch.  D.  74  (18S7),  ante,  p.  498. 


Ch.  6)  BENTS  617 

SECTION  3.— FAILURE  TO  OBTAIN  POSSESSION 


NEALE  V.  MACKENZIE. 

(Exchequer  Chamber,  1836.     1  Mees.  &  W.  747.) 

[On  writ  of  error  to  the  Court  of  Exchequer.] 

Lord  Denman,  C.  J."  This  is  an  action  of  trespass  for  entering 
the  plaintiff's  dwelUng-house,  and  taking  his  goods. 

The  declaration  is  dated  the  25th  of  April,  1834.  The  defendant, 
on  the  24th  of  May,  1834,  pleaded  that  he,  being  seised  of  the  dwell- 
ing-house and  certain  other  premises,  demised  the  same  to  the  plain- 
tiff for  one  year  from  the  25th  of  June,  1833,  at  the  rent  of  70/.,  paya- 
ble quarterly;  that  tlie  plaintiff  accepted  the  lease,  and,  by  virtue  of 
the  said  demise,  entered  into  and  upon  the  said  demised  premises, 
and  thereupon  became  and  yet  was  possessed  thereof  for  the  said  term 
so  granted  to  him  as  aforesaid;  and,  until  the  25th  of  December, 
1833,  and  from  thence  until  and  at  the  time  when  &c.,  held  and  en- 
joyed the  dwelling-house  and  premises  by  virtue  of  the  said  demise ; 
that,  on  the  said  25th  of  December,  1833,  35/.  of  the  rent  was  in  arrear. 
wherefore  the  defendant  entered  and  made  a  distress  for  the  same. 

The  plaintiff,  on  the  6th  of  December,  1834,  replied  that  one  Adam 
Charlton,  before  the  demise  in  the  plea  mentioned,  and  from  thence  and 
still  was  in  possession  of  eight  acres  of  land  of  the  said  demised  prem- 
ises, under  and  by  virtue  of  a  demise  theretofore  made  by  the  defend- 
ant to  him,  which  demise  was  then  and  from  thence  had  been  and  still 
was  in  full  force  and  undetermined,  whereby  the  plaintiff  did  not  and 
could  not  enter  into  the  possession  of,  or  hold  or  enjoy  the  said  last- 
mentioned  land,  so  being  parcel  of  the  demised  premises  in  the  plea 
mentioned ;  and  although  he  had  been  willing  and  desirous  of  entering, 
he  had  been  kept  out  of  possession  by  Adam  Charlton  by  virtue  of  the 
demise  to  him,  and  the  plaintiff  had  been  prevented  from  holding  and 
receiving  the  profits. 

The  rejoinder  alleges  that  the  plaintiff,  at  the  time  of  his  entering 
on  the  demised  premises,  had  notice  that  Adam  Charlton  was  in  posses- 
sion of  the  eight  acres  as  tenant  to  the  defendant,  under  a  demise  for 
a  term  then  unexpired. 

To  this  rejoinder  there  is  a  special  demurrer,  for  inconsistency  with 
the  plea  and  departure  therefrom. 

The  question  to  be  determined  is,  whether  the  replication  be.  an  an- 
swer to  the  plea. 

It  has  been  argued  that  the  impediment  to  the  plaintiff's  obtaining 
possession  of  the  eight  acres  demised  to  Adam  Charlton  by  the  de- 

*•  The  statement  of  facts  Is  omitted. 


618  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

fendant  previously  to  the  demise  made  to  the  plaintiff,  is  in  the  na- 
ture of  an  eviction.  On  one  side  it  is  contended  that  it  is  analogous 
to  an  eviction  by  title  paramount,  the  right  of  Adam  Charlton  being 
prior  to  the  demise  made  by  the  lessor,  and  to  the  title  acquired  under 
that  demise  by  the  lessee ;  and  on  the  other  side,  that  it  is  analogous 
to  an  eviction  by  the  tortious  act  of  the  lessor,  since  the  impediment 
arises  from  the  wrongful  act  of  the  lessor  himself  in  demising  land 
which  he  had  already  parted  with ;  and  is  not  to  be  distinguished  in 
principle  from  the  case  of  an  entry  upon  the  lessee  under  a  demise 
made  by  the  lessor  to  a  stranger  immediately  after  possession  taken 
by  the  lessee. 

If  the  former  of  these  views  be  adopted,  the  rent  will  be  apportion- 
able,  and  the  distress  justified  by  the  plea: — for  it  is  clear  that  a  person 
may  distrain  for  apportionable  rent ;  and,  if  the  defendant  was  entitled 
to  distrain  at  all,  the  action  of  trespass  cannot  be  maintained.  If  the 
latter  view  be  correct,"  the  defendant  was  not  entitled  to  distrain  at  all, 
so  long  as  the  plaintiff  was  kept  out  of  possession  of  any  part  by  his 
wrongful  act. 

But,  we  are  of  opinion  that  the  impediment  to  the  plaintiff's  taking 
possession  in  this  case,  is  not  analogous  to  an  eviction : — for  it  appears 
to  us  that  no  interest  in  the  eight  acres  previously  demised  to  Adam 
Charlton  passed  to  the  plaintiff  by  the  demise  subsequently  made  to 
him.  The  demise  to  Adam  Charlton  covered  the  whole  time  during 
which  the  rent  distrained  for  accrued. 

But  it  has  been  supposed,  that  notwithstanding  the  demise  to  Adam 
Charlton,  by  which  the  defendant  had  parted  with  his  right  of  posses- 
sion in  the  eight  acres,  the  plaintiff  by  his  subsequent  lease  took  an  in- 
tcresse  termini  in  these  eight  acres  for  the  period  of  his  own  lease, 
viz.,  one  year,  so'  as  to  give  him  a  right  to  a  term  for  all  that  period, 
and  to  the  possession  on  the  determination  of  the  prior  lease  by  ef- 
flux of  time,  or  by  any  other  lawful  mode,  whenever  and  in  whatever 
way  it  should  be  determined ;  and  that  the  existence  of  the  prior  de- 
mise being  the  impediment  by  which  alone  the  plaintiff  was  prevented 
from  obtaining  possession  under  the  demise  to  him,  the  case  must  be 
governed  by  the  same  principle  as  that  of  an  eviction  by  title  para- 
mount :  and,  if  any  interest  in  the  eight  acres  did  pass  to  the  plain- 
tiff' under  the  demise  to  him,  we  might  possibly  be  disposed  to  accede  to 
this  view  of  the  case ;  considering  that  eviction  by  title  paramount 
means  eviction  by  a  title  superior  to  the  titles  both  of  lessor  and  lessee ; 
against  which  neither  is  enabled  to  make  a  defence. 

It  appears  to  us,  however,  upon  authority  which  we  do  not  feel  our- 
selves at  liberty  to  dispute,  that  the  demise  to  the  plaintiff*  of  the  eight 
acres  in  question  was  wholly  void. 

It  has  been  already  observed  that  the  demise  to  Charlton,  made  pre- 
viously to  the  demise  to  the  plaintiff,  covers  the  whole  of  the  plaintiff's 
term ;  or  at  least  the  whole  period  for  which  the  distress  was  made. 
Now,  it  is  expressly  laid  down  in  Bacon's  Abr.,  Leases,  (N.,)  (which  is 


Ch.  G)  RENTS  619 

to  be  considered  as  the  language  of  Lord  Chief  Baron  Gilbert,)  as  fol- 
lows: "If  one  make  a  lease  to  A.  for  ten  years,  and  the  same  day 
make  a  parol  lease  to  B.  for  ten  years  of  the  same  lands,  this  second 
lease  is  absolutely  void,  and  can  never  take  effect  either  as  a  future 
interesse  termini,  or  as  a  reversionary  interest,  though  the  first  lessee 
should  forfeit  or  otherwise  determine  his  estate,  or  though  the  first 
lease  were  on  condition,  and  the  condition  broken  within  ten  years ; 
neither  shall  the  lessor  have  the  rent  reserved  upon  such  second  lease, 
but  such  second  lease  is  absolutely  void,  as  if  none  such  had  been  made. 
The  reason  whereof  is,  because  the  first  lease  being  made  for  ten 
years,  the  lessor  during  that  time  had  nothing  to  do  with  the  posses- 
sion, or  to  contract  with  any  other  for  it ;  and  the  second  lease  being 
made  the  same  day,  and  for  no  longer  term  than  the  first  ten  years, 
would  not  pass  any  interest  as  a  future  interesse  termini  certainly ; 
for,  the  first  lessee  had  the  whole  interest  during  that  time ;  and  his 
forfeiture  or  determination  of  it  sooner,  which  was  perfectly  contingent 
and  accidental,  shall  liever  make  good  the  second  lease  as  a  future  in- 
teresse termini,  when  at  the  time  of  making  thereof  it  was  absolutely 
void  for  want  of  a  power  in  the  lessor  to  contract  for  it:  and  as  a  re- 
versionary interest  it  cannot  be  good  for  want  of  a  deed."  And  a 
little  further  on,  "But  now,  if  s.uch  second  lease  had  been  made  for 
twenty  years,  then  it  had  been  good  as  a  future  interesse  termini  for 
the  last  ten  years,  and  void  for  the  first  ten  years  for  the  reasons  be- 
fore given,  but  for  the  last  ten  years  it  had  been  good ;  because,  when 
the  first  ten  years  were  elapsed,  the  second  lessee  might  then  execute 
and  reduce  into  possession  by  entry  as  well  as  if  it  had  been  at  first 
made  in  possession ;  for,  it  had  been  good  for  the  whole  twenty  years 
if  the  first  lease  had  not  stood  in  the  way,  and  tliat  can  stand  in  tlie 
way  no  longer  than  it  continues,  and  therefore,  by  its  termination,  lets 
in  the  second  lease ;  but,  as  a  grant  of  the  reversion  such  second  lease 
could  not  be  good  for  want  of  a  deed,  for  the  reasons  before  given, 
neither  could  any  attornment  help  it  or  let  in  the  second  lease,  till  the 
^first  ten  years  ran  out  by  effusion  of  time."  And  afterwards  it  is 
said  that  if,  after  a  lease  for  ten  years,  a  second  lease  by  deed  poll 
were  made  for  twenty  years,  it  might  take  effect  with  attornment 
as  a  grant  of  the  reversion,  or,  if  no  attornment  could  be  had,  "yet 
it  would  enure  as  a  future  interesse  termini  for  the  last  ten  years,  and 
*\'ould  be  absolutely  void  for  the  first  ten  years,  as  much  as  if  it  had 
been  made  by  parol." 

It  has  been  remarked  that  the  doctrine  here  laid  down  is  derived 
from  the  argument  of  counsel  in  the  case  of  Bracebridge  v.  Clowse,  in 
Plowd.  421 :  but  it  may  be  answered,  that  although  the  matter  intro- 
duced into  Bacon's  Abridgment  is  first  distinctly  found  in  the  argument 
set  forth  at  length  in  Plowden,  it  now  stands  upon  the  authority  of 
Lord  Chief  Baron  Gilbert.  Moreover,  the  point  immediately  under 
consideration  in  this  case  is  confirmed  by  the  opinion  of.  Gawdy,  J.,  in 
Dove  v.  Willcot,  Cro.  Eliz.  160,  who  says,  "If  a  lease  be  made  for  two 


620  RIGHTS  IN  THE   LAND   OF   ANOTHER  (Part  2 

years,  and  after  the  lessor  let  the  land  for  four  years,  this  is  but  a 
lease  for  two  years,  although  the  first  lessee  surrender,  for  he  had  no 
power  to  contract  for  the  first  two  years  at  the  beginning;  but  other- 
wise when  the  estate  is  determinable  upon  an  uncertainty;"  and  cites 
Plowd.  Comment.  Smith  &  Stapleton's  case,  which  is  the  case  where 
the  argument  is  fully  stated — fo.  432. 

It  may  be  remarked  also  that  in  Comyns's  Digest,  title  Estates  (G. 
13,)  it  is  said  that  a  lease  which  cannot  take  effect  in  interest,  except 
by  possibility,  if  it  be  not  an  estoppel,  shall  be  void;  as,  if  tenant  in 
fee  leases  by  parol  to  A.  for  nine  years,  and  the  same  day  to  B.  for 
nine  years,  the  lease  to  B.  shall  be  void.  For  this  he  cites  Plowden, 
432,  and  though  this  statement  be  only  part  of  the  language  of  the 
apprentice  who  argued  the  case  of  Smith  v.  Stapleton,  Chief  Baron 
Comyns,  by  introducing  it  in  this  general  way,  must  be  considered  as 
adopting  it  in  some  degree  at  least  as  authority:  in  what  is  said  by 
Gawdy,  as  referred  to  in  Cro.  Eliz.  160,  there  is  afterwards  added 
Smith  V.  Stapleton,  Plow.  426,  though  it  is  not  clear  whether  this  be 
his  language  or  that  of  the  reporter. 

The  same  doctrine,  as  far  as  regards  a  second  parol  lease  for  years 
after  a  former  lease  for  years,  appears  to  have  been  treated  as  clear  law 
in  various  books ;  though  the  effect  of  such  a  lease  made  after  a  prior 
lease  for  life,  has  been  the  subject  of  discussion.  See  Bro.  Abr.,  Lease, 
pi.  35,  48 ;  Plowden,  521,  note  of  the  reporter.  Welchden  v.  Elkington, 
Plowd.  521 ;  Plowden's  Quseries,  122  and  161 ;  Sir  Hugh  Cholmon- 
deley's  case,  Moore,  344,  in  tlie  argument  of  Cook,  Attorney-General. 
So,  in  Watt  v.  Maydewell,  Hutton,  105 — "If  a  man  make  a  lease 
for  twenty-one  years  and  after  makes  a  lease  for  twenty-one  years 
by  parol,  that  is  merely  void;  but  if  the  second  lease  had  been  by 
deed,  and  he  had  procured  the  former  lessee  to  attorn,  he  shall  have 
the  reversion."  Edward  v.  Staler,  Plardr.  345,  arguendo.  So  Shep- 
pard's  Touchst.  275  b :  "If  the  second  lease  be  for  the  same  or  a  less 
time,  as,  if  the  first  lease  be  for  twenty  years,  and  the  second  lease 
be  for  twenty  or  for  ten  years,  to  begin  at  the  same  time,  these  second 
leases  are  for  the  most  part  void ;"  but  if  the  second  lease  be  by  fine, 
deed  indented  or  poll,  it  may  pass  the  reversion  with  attornment  when 
attornment  is  necessary,  and  without  if  not  necessary.  But,  if  the 
second  lease  be  by  word  of  mouth  it  is  otherwise :"  "And  if  the  second 
lease  be  by  fine,  or  deed  indented,  then  it  may  work  by  way  of  estoppel 
both  against  the  lessor  and  the  lessee;  so  that,  if  the  first  lease  happen 
by  any  means,  as,  by  surrender  or  otherwise,  to  determine  before  it  be 
run  out,  then  the  second  lessee  shall  have  it." 

Upon  these  authorities,  therefore,  we  feel  ourselves  obliged  to  hold 
that  the  lease  to  the  plaintiff  was  utterly  void,  so  far  as  regarded  the 
€ight  acres  demised  to  Charlton. 

If  that  be  so,  we  are  unable  to  distinguish  the  case  in  principle  from 
that  of  Gardiner  v.  Williamson,  2  Barn.  &  Adolph.  336,  where  the 
tithes  of  a  parish,  together  with  a  messuage  used  as  a  homestead  for 


Ch.  6)  BENTS  621 

collecting  the  tithes,  having  been  demised  by  parol  at  a  rent  of  200/. 
per  annum  and  a  distress  made  for  arrears,  the  Court  of  King's  Bench 
held  that  an  action  of  trespass  would  lie,  because  the  demise  of  the 
tithes,  being  by  parol,  was  void.  There  was  no  valid  demise,  it  was 
said,  of  the  whole  subject  matter,  nor  any  distinct  rent  reserved  for  that 
part  of  it  upon  which  there  might  have  been  a  legal  distress.  That  case 
was  the  stronger,  because  it  was  contended  that  the  whole  rent  must  be 
taken  to  be  issuable  out  of  the  corporeal  hereditament,  upon  which 
alone  a  distress  could  be  made.  And  accordingly,  in  a  case  of  a  lease 
by  indenture,  Dyer  is  reported  to  have  held,  (Moore,  50,)  that,  if 
lands  at  common  law  and  copyhold  lands  are  leased  by  indenture 
rendering  rent,  all  the  rent  is  issuing  out  of  the  lands  at  common  law ; 
for  the  lessor  had  no  power  to  make  such  a  lease  of  copyhold,  where- 
fore as  to  this  the  lease  is  utterly  void;  but  it  is  added,  that  if  a  man 
lets  lands,  parcel  of  which  he  is  seised  of  by  disseisin,  then  the  rent  is 
issuing  out  of  all  the  land,  and  by  the  entry  of  the  disseisee  the  rent 
shall  be  apportioned,  because  the  lease  of  this  was  not  void  but  voida- 
ble. In  this  last  case  the  tenant  took  an  interest,  and  enjoyed  all  the 
lands  demised  till  the  time  of  his  being  evicted  from  a  parcel  thereof  by 
the  disseisee,  and  was  therefore  liable  in  respect  of  such  interest  and 
enjoyment  to  a  portion  of  the  rent.  In  the  case  before  the  court,  which 
is  not  the  case  of  a  demise  by  indenture,  the  rent  is  reserved  in  re- 
spect of  all  the  land  professed  to  be  demised,  and  to  be  issuing  out  of 
the  whole  and  every  part  thereof ;  and  as  the  plaintiff,  as  to  a  portion 
of  the  land  comprised  in  the  demise,  (which  might  be  great  or  small, 
as  far  as  the  principle  is  concerned,)  has  taken  no  interest,  and  had 
no  enjoyment,  and  is  not  bound  by  any  estoppel,  we  are  of  opinion 
that  the  distress  made  by  the  defendant  is  not  justifiable,  either  in 
respect  to  the  whole  rent  reserved  or  any  portion  of  it. 

It  may  further  be  observed,  that,  even  supposing  the  plaintiff  to  have 
taken  an  interesse  termini  in  the  eight  acres,  capable  of  being  executed 
by  entry  in  case  the  demise  to  Charlton  should  happen  to  be  forfeited 
or  surrendered,  yet,  as  that  demise  to  Charlton  was  in  force  at  the 
commencement  of  the  plaintiff's  tenancy,  and  continued  during  the 
whole  period,  in  respect  of  which  the  distress  has  been  made,  no  demise 
of  those  eight  acres  to  the  plaintiff  ever  took  effect ;  and,  consequently, 
no  right  to  any  rent  in  respect  of  those  eight  acres  has  ever  come  into 
existence.  And  we  are  not  aware  of  any  case  where  an  entire  rent 
reserved  has  been  held  to  be  apportionable,  in  which  the  tenant  has 
not  been  at  some  period  subject  to  the  entire  rent  by  virtue  of  the 
demise.  Here,  the  right  of  apportionment  is  not  founded  upon  any 
eviction,  or  other  matter  occurring  subsequently  to  the  demise,  but  up- 
on an  original  defect  in  the  demise  itself  by  which  the  entire  rent  was 
reserved.  In  this  respect  it  is  strictly  analogous  to  Gardiner  v.  Wil- 
liamson. 

In  the  case  of  Tomlinson  v.  Day,  5  Moore,  558,  which  has  been  refer- 
red to,  the  landlord  did  not  claim  an  apportioned  part  of  an  entire  rent, 


622  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

either  by  avowry  for  a  distress  or  by  action  for  the  rent.  It  was  an 
action  for  use  and  occupation,  in  which  he  was  allowed  to  make  use  of 
an  agreement  for  a  lease,  (according  to  the  express  provision  of  the 
statute  11  Geo.  2,  c.  19,  s.  14,)  "as  evidence  of  the  quantum  of  damages 
to  be  recovered;"  and,  as  the  defendant  had  been  interrupted  in  the 
full  enjoyment  of  what  had  been  agreed  for,  the  plaintiff  was  held 
"entitled  to  recover  a  reasonable  compensation  for  the  property  en- 
joyed by  the  defendant  as  an  equivalent  for  rent."  The  interruption 
to  the  defendant's  right  of  exclusive  sporting  was  indeed  compared  by 
Lord  Chief  Justice  Dallas  and  Mr.  Justice  Richardson  to  an  eviction ; 
but,  if  it  was  an  eviction,  it  was  clearly  an  eviction  by  title  paramount. 
The  agreement  for  exclusive  sporting  was  not  void  on  account  of  the 
landlord  having  made  a  prior  agreement  to  let  it  to  some  other  per- 
son ;  but  it  was  defeated,  because  other  persons  interfered  who  had  a 
right  superior  to  that  of  the  landlord.  Supposing  the  circumstances, 
therefore,  to  amount  to  an  eviction,  it  would  be  a  case  of  apportion- 
ment according  to  the  acknowledged  rule ;  and  would  not  assist  the 
argument  in  favour  of  the  defendant. 

Upon  the  whole,  therefore,  we  are  of  opinion  that  the  judgment 
of  the  Court  of  Exchequer  ought  to  be  reversed. 

Judgment  reversed. 


LAWRENCE  v.  FRENCH. 
(Supreme  Court  of  New  York,  1841.    25  Wend.  443.) 

This  was  an  action  of  replevin,  tried  at  the  Albany  circuit  in  June, 
1839,  before  the  Hon.  John  P.  Cushman,  one  of  the  circuit  judges. 

The  plaintiff,  on  the  12th  December,  1835,  took  a  lease  of  the  de- 
fendant of  a  building  in  the  city  of  Albany  called  the  Exchange 
Coffee  House,  for  the  term  of  one  year  from  the  first  day  of  May, 
1836,  at  an  annual  rent  of  $1,050,  payable  quarterly.  He  had,  since 
May,  1834,  been  in  possession  of  the  whole  of  the  premises  demised, 
except  one  room  in  the  corner  of  the  building,  which  was  occupied  by 
one  Candy.  On  the  first  day  of  May,  1836,  Candy,  under  a  prior 
lease  from  the  defendant,  at  an  annual  rent  of  $400,  continued  in 
the  occupation  of  the  room;  and  the  plaintiff  continued  to  occupy  all 
the  residue  of  the  building,  until  17th  January,  1837;  when  the  de- 
fendant issued  a  distress  warrant,  claiming  $487.50  to  be. due  to  him 
from  the  plaintiff  from  three  quarters'  rent,  estimating  the  rent  by 
deducting  $400  from  the  annual  rent  reserved  in  the  lease  to  the 
plaintiff;  thus  charging  the  plaintiff  with  an  annual  rent  of  only  $650, 
for  three-fourths  of  which  sum  the  warrant  was  issued.  The  proper- 
ty of  the  plaintiff  was  distrained  to  the  amount  of  $487.50;  and 
the  plaintiff  sued  out  a  writ  of  replevin.  It  was  conceded  by  the  plain- 
tiff that  $650  per  annum  was  a  fair  price  for  the  use  of  that  portion 
of  the  premises  occupied  by  him ;   but  he  insisted  that  the  defendant. 


Ch.  6)  KENTS  G23 

not  having  put  him  into  possession  of  the  whole  of  the  demised  prem- 
ises, had  no  authority  by  law  to  distrain  for  the  rent  reserved,  or  any 
part  thereof;  and  so  requested  the  judge  to  charge  the  jury.  The 
judge  refused  so  to  charge;  and  on  the  contrary  instructed  the  jury 
that  the  defendant  had  a  lawful  right  to  make  tlie  distress  for  the 
sum  demanded,  and  was  entitled  to  their  verdict.  The  jury  accord- 
ingly found  a  verdict  for  the  defendant,  with  six  cents  damages  and 
six  cents  costs;  found  the  rent  to  be  $487.50,  and  the  value  of  the 
property  at  the  same  sum ;  and  assessed  the  damages  of  the  defendant 
at  $10,  for  the  detention  of  the  property.  The  plaintiff  having  ex- 
cepted to  the  charge  of  the  judge,  moved  for  a  new  trial. 

Nelson,  C.  J.*^  It  is  a  familiar  rule  of  law,  that  if  the  landlord 
enter  wrongfully  upon,  or  prevent  the  tenant  from  the  enjoyment 
of,  a  part  of  the  demised  premises,  it  suspends  the  whole  rent,  until 
possession  is  restored.  His  title  is  founded  upon  this,  that  the  land 
leased  is  enjoyed  by  the  tenant  during  the  term ;  if,  therefore,  he  be 
deprived  of  it,  the  obligation  to  pay  ceases.  The  rule  is  otherwise 
wliere  a  part  is  recovered  by  title  paramount  to  the  lessor's ;  for, 
in  that  case  he  is  not  so  far  considered  in  fault,  as  that  it  should 
deprive  him  of  a  return  for  the  part  remaining.  The  law,  therefore, 
directs  an  apportionment  of  the  rent.  6  Bacon's  Abr.  44,  tit.  Rent, 
L.;  Gilbert  on  Rents,  173;  Comyn's  Land.  &  Ten.  214-219;  Bradby 
on  Dist.  24—3.  But  as  between  lessor  and  lessee,  an  eviction  from 
part  by  the  former,  or  any  person  claiming  through  him,  will  operate 
a  suspension  of  the  whole.  Comyn's  Land.  &  Ten.  524;  2  Saund. 
PI.  &  Ev.  630.  There  are  some  cases  illustrating  this  principle  to 
which  I  will  refer.     *     *     * 

The  case  of  Ludwell  v.  Newman,  6  T.  R.  458,  in  principle,  comes 
near  the  present  one.  It  was  an  action  on  a  covenant  of  quiet  en- 
joyment in  a  lease.  The  breach  was,  that  the  plaintiff  could  not  ob- 
tain the  possession;  that  he  applied  to  the  tenant  to  attorn,  who  re- 
fused ;  an  action  of  ejectment  was  brought,  and  defeated  by  a  previous 
lease  of  the  defendant,  given  the  month  before ;  by  reason  of  all  which 
the  plaintiff  was  prevented  from  enjoying  the  term,  &c.  The  second 
count  was  like  the  first,  except  it  omitted  the  application  to  attorn, 
and  proceedings  in  ejectment.  Defective  pleas  were  pu^  in  to  each 
count,  to  which  there  were,  demurrers.  One  objection  taken  to  the 
pleas  was  this:  they  stated  the  plaintiff'  might  lawfully  have  en- 
joyed during  the  first  half  year;  when  it  appeared  by  the  declaration, 
that  he  could  not  have  entered  at  any  time  on  account  of  the  prior 
lease.  The  court  held,  that  the  defendant's  covenant  of  quiet  enjoy- 
ment meant  a  legal  entry  and  enjoyment,  without  the  permission  of 
any  other  person;  which  could  not  take  place  on  account  of  the  prior 
subsisting  lease  granted  to  R.  See  Piatt  on  Cov.  327.  The  case  de- 
cides that  the  lessee  is  not  bound  to  test  his  right  of  entry  by  suit,  as 

*''  Part  of  the  opinion  is  omitted. 


624  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

the  only  legal  evidence  of  a  breach  of  the  covenant;  nor  need  he  com- 
mit a  trespass  by  an  actual  entry.  Piatt  on  Cov.  327;  Hob.  12;  2 
Bacon,  66,  B. 

In  Tomlinson  v.  Day,  2  Brod.  &  Bing.  680,  the  defendant  took  a 
farm  under  an  agreement,  by  which  the  plaintiff  stipulated  that  he 
should  enjoy  the  exclusive  right  of  sporting  over  the  manor  In  which 
the  farm  lay,  and  should  occupy  the  glebe  land  of  the  parish;  rent 
i450.  The  agreement,  though  acknowledged  and  recognized  by  the 
defendant,  had  never  been  signed  by  him;  but  he  occupied  the  farm 
for  some  time.  The  chief  inducement  in  taking  it,  was  the  privilege 
of  sporting ;  but  it  turned  out  the  plaintiff  had  no  power  to  grant  the 
privilege,  and  the  defendant  was  in  fact  warned  off  by  the  occupiers 
of  the  manor.  Neither  did  he  get  possession  of  the  glebe.  In  an  ac- 
tion for  use  and  occupation,  the  court  held  that  an  eviction  of  a  part 
of  the  subject  matter  of  the  demise  had  been  proved,  and  allowed  a 
recovery  for  no  more  than  the  annual  value  of  the  farm.  Though  the 
rule  for  a  time  seems  to  have  been  inflexible,  that  in  these  cases  the 
whole  rent  should  be  suspended  till  possession  was  restored,  the  last 
case  referred  to  shows,  that  if  the  tenant  occupies  part,  he  may  be 
charged  for  such  occupation  upon  a  quantum  meruit.     *     *     * 

The  result  of  all  these  cases,  I  think,  shows  that  the  defendant  here 
has  deprived  himself  of  the  remedy  by  distress.  The  eviction  from 
part  of  the  demised  premises,  by  means  of  his  prior  lease,  defeated  the 
contract ;  and  though  the  tenant  is  still  liable  by  reason  of  his  occu- 
pation of  the  residue,  the  holding  is  not  strictly  under  the  original 
agreement,  but  an  implied  obligation  arises  to  pay  the  worth  of  them  at 
the  time  specified  therein.  No  fixed  rent  is  due,  and  therefore  distress 
is  not  the  appropriate  remedy.  It  would  be  unjust  to  allow  it  here,  as 
the  party  himself  has  put  it  out  of  the  power  of  the  tenant,  to  tender 
the  amount.  His  rights  will  be  sufficiently  protected  by  allowing  the 
usual  redress,  where  no  specific  rent  has  been  agreed  on.  5  Barn.  & 
Aid.  322. 

New  trial  granted,.    . 


FRIEND  v.  OIL  WELL  SUPPLY  CO. 

(Supreme  Court  of  Pennsylvania,  1897.     179  Pa.  290,  36  Atl.  219.) 

Sti;rre;tt,  C.  J.'**  There  is  practically  no  controversy  as  to  any 
of  the  material  facts  in  this  case.  On  March  12,  1892,  by  written 
agreement,  plaintiff  leased  to  defendant  company,  for  one  year  from 
July  1,  1892,  "all  that  portion  of  Eagle  Rolling  Mill"  described  there- 
in, for  the  yearly  rent  of  $6,000,  payable  monthly,  etc.  Prior  to  the 
date  of  said  lease,  the  rolling  mill  had  been  occupied  by  the  Oliver 
Iron  &  Steel  Company  under  lease  from  plaintiff  which  expired  on 

*8  Part  of  the  opinion  is  omitted. 


Ch.  6)  RENTS  625 

July  1,  1892.  By  and  with  the  consent  of  their  lessor,  that  company 
had  sublet  part  of  said  property  to  the  defendant  company,  and  it 
had  entered  upon  the  demised  premises,  and  was  in  possession  there- 
of prior  to  March  12,  1892,  and  continued  in  possession  until  July  1, 
1893,  the  expiration  of  the  first-mentioned  lease.  This  suit  was 
brought  to  recover  the  one  year's  rent  due  under  that  lease.  The  de- 
fense was  eviction  by  the  Pittsburg,  Cincinnati,  Chicago  &  St.  Louis 
Railway  Company  under  paramount  title,  etc.    *    *    * 

The  railroad  bridge  or  viaduct  referred  to  by  the  court  below  was 
erected  prior  to  1865,  and,  having  been  destroyed  by  fire,  was  rebuilt 
in  1885.  From  the  date  of  its  original  construction  until  the  present 
time  it  has  stood  on  the  same  abutments,  etc.  The  right  of  way,  for 
that  part  of  the  railroad,  etc.,  was  acquired  by  condemnation  proceed- 
ings in  the  district  court  of  Allegheny  county  at  No.  115,  July  term, 
1855,  in  connection  with  the  release  of  James  Wood,  then  owner  of 
the  Eagle  Rolling  Mill  property,  executed  December  2,  1864,  and 
duly  recorded,  etc.  For  the  consideration  therein  set  forth,  said  Wood, 
for  himself,  his  heirs,  executors,  administrators,  and  assigns,  granted 
and  released  unto  the  then  owners  of  the  railroad,  their  successors 
and  assigns,  forever,  the  right  of  way  for  their  railroad  tracks,  bridg- 
es, and  abutments,  as  the  same  are  now  located  through,  over,  and 
upon  a  certain  tract  of  ground,  and  over  a  certain  rolling  mill,  situate 
on  the  south  side  of  the  Monongahela  river,  at  or  near  Saw  Mill  run, 
"being  all  the  rights,  liberties,  and  privileges  secured  by  the  Pittsburg 
&  Steubenville  Railroad  Company  by  virtue  of  divers  proceedings 
had  in  the  district  court  of  Allegheny  county  at  No.  115,  July  term, 
1855,  the  said  record  and  proceedings  being  taken  and  made  as  part  of 
this  release."  He  also  released  them  "from  all  claims  for  damages 
by  reason  of  the  location  of  the  said  railroad  and  bridge  of  the  said 
companies,  through,  over,  or  upon  the  tract  aforesaid." 

The  perpetual  servitude  thus  imposed  upon  a  portion  of  the  rolling 
•mill  property,  with  all  its  incidental  rights  of  maintenance,  repair, 
reconstruction,  etc.,  pertaining  thereto,  has  been  continuous,  open, 
and  manifest  to  all  who  had  anything  to  do  with  the  property;  and 
its  effect  on  the  servient  property  must  have  been  contemplated  by 
both  lessor  and  lessee  when  the  lease  in  question  was  executed.  With 
this  bridge  or  viaduct,  constituting  a  section  of  the  railroad  there 
upon  the  ground,  the  defendant  went  into  possession  as  the  subten- 
ant of  the  Oliver  Iron  &  Steel  Company,  and  afterwards  took  the  new 
lease  from  the  plaintiff.  It  cannot  be  doubted  that  the  defendant  was 
fully  aware  of  the  open  and  visible  servitude  to  which  the  demised 
property  then  was,  and  would  continue  to  be,  subject,  while  in  its 
possession  as  lessee.  It  is  well  settled  that,  where  a  continuous  and 
apparent  easement  or  servitude  is  imposed  upon  land,  a  purchaser  of 
the  servient  property,  in  the  absence  of  an  express  reservation  or 
agreement  on  the  subject,  takes  the  property  subject  to  the  easement 
Big. Rights — iO 


626  RIGHTS  IN  THE  LAND   OF  ANOTHER  (Part  3 

or  servitude.  Cannon  v.  Boyd,  7Z  Pa.  179;  Geible  v.  Smith,  146  Pa. 
276,  .23  Atl.  437,  28  Am.  St.  Rep.  796;  Ormsby  v.  Pinkerton,  159 
Pa.  458,  28  Atl.  30Q.  This  principle  is  not  restricted  to  cases  between 
the  owner  of  the  servient  and  the  owner  of  the  dominant  property. 
Eby  V.  Elder,  122  Pa.  342,  15  Atl.  423.  In  that  case  the  defense  in- 
terposed to  a  purchase-money  mortgage  was  that  the  land  purchased 
was  incumbered  by  a  private  right  of  way,  and  it  was  held  that  "if, 
when  land  is  conveyed,  it  is  openly  and  plainly  subject  to  an  easement 
of  way,  the  e^xistence  of  the  easement  will  be  no  defense  to  the  pay- 
ment of  the  purchase  money,  as  a  breach  of  the  covenant  against  in- 
cumbrances implied  from  the  words  'grant,  bargain  and  sell.'  "  *  *  * 
Other  authorities  to  the  same  effect  might  be  cited,  but  those  above 
referred  to  are  sufficient. 

The  soundness  of  the  underlying  principle  therein  recognized  can- 
not be  questioned,  nor  is  there  any  valid  reason  why  the  same  prin- 
ciple should  not  be  applied  in  cases  between  lessor  and  lessee,  where  it 
is  clearly  shown  that  the  latter  was  fully  aware  of  the  fact  that  the 
demised  premises,  or  part  thereof,  was  subject  to  an  open,  notorious, 
and  permanent  servitude  or  easement,  such  as  the  railway  viaduct, 
etc.,  in  this  case.  In  such  cases,  unless  something  to  the  contrary  ap- 
pears, it  is  fair  to  assume  that  the  parties  contracted  with  reference  to 
the  then  existing  condition  of  the  premises,  and  that  the  lease  was 
made  and  accepted  subject  to  the  railway  company's  right  of  way 
over  some  of  the  buildings  composing  the  rolling-mill  plant,  together 
with  all  the  incidental  rights  pertaining  to  such  an  easement.  It  so 
happened  that  the  railway  company  found  it  necessary,  during  a  few 
months  of  defendant's  term,  to  exercise  some  of  those  incidental  rights 
in  repairing  and  practically  reconstructing  its  viaduct.  In  consequence 
of  this,  the  defendant  was  more  or  less  inconvenienced  and  deprived 
of  the  beneficial  enjoyment  of  a  part  of  the  premises  during  that 
time ;  but  that  result  was  neither  the  fault  of  the  pUintiff  nor  a  mat- 
ter over  which  he  had  any  control.  If  an  unreasonable  time  was  con- ' 
sumed  in  the  work  of  reconstruction,  or  if  anything  to  defendant's 
injury  was  done  by  the  railway  company,  in  excess  of  the  authority 
acquired  by  the  condemnation  proceedings  and  release  aforesaid,  de- 
fendant company's  remedy,  if  any  it  has,  would  be  against  the  wrong- 
doer, and  not  against  the  plaintiff. 

It  is  unnecessary  to  consider  the  plaintiff's  further  answer  to  the 
defense  against  the  payment  of  rent,  viz.  "that  there  was  no  eviction 
in  this  case."  It  follows,  from  what  has  been  said,  that  there  was  no 
error  in  directing  the  jury  to  find  for  the  plaintiff  the  full  amount  of 
his  claim.  The  authorities  mainly  relied  on  by  the  learned  counsel 
for  defendant  are  inapplicable  to  the  undisputed  facts  of  this  case. 

Judgment  affirmed.*® 

*»  See  Duncan  v.  Granas.  166  Cal.  41,  134  Pac.  979  (1913) ;  Tunis  v.  Gran- 
dy,  22  Grat.   (Va.)   109  (1872). 


Ch.  6)  BENTS  627 


MOORE  V.  MANSFIELD  et  al. 

(Supreme  Judicial  Court  of  Massachusetts,  1902.    182  Mass.  302,  65  N.  E. 
398,  94  Am.   St.    Rep.   657.) 

Holmes,  C.  J.  This  is  a  bill  to  reach  and  apply  the  proceeds  of 
a  judgment  recovered  by  the  defendant  to  the  payment  of  a  debt  al- 
leged to  be  due  to  the  plaintiff  for  use  and  occupation.  The  bill  was 
dismissed  by  the  Chief  Justice  of  the  Superior  Court,  and  the  facts 
found  by  him  were  reported  under  the  statute,  substantially  as  fol- 
lows :  The  defendant  hired  of  the  plaintiff  an  entire  house  by  a  parol 
lease,  and  took  possession.  At  the  time,  the  attic  was  locked  and 
contained  goods  belonging  to  the  plaintiff.  The  defendant  did  not  find 
this  out  at  first,  but  when  he  did  he  asked  for  the  key  and  the  use  of 
the  attic  but  never  got  it  while  he  occupied  the  house.  The  judge 
found  that  there  was  a  partial  eviction  and  dismissed  the  bill,  seem- 
ingly on  this  ground  and  the  further  one  that  the  equitable  process 
given  by  Rev.  Laws,  c.  159,  §  3,  cl.  7,  to  reach  and  apply  certain  prop- 
erty "in  payment  of  a  debt,"  would  not  be  available  upon  a  claim  for 
an  unascertained  amount  for  use  and  occupation.  The  question  is 
whether  the  facts  found  show  the  decree  to  have  been  wrong. 

We  say  nothing  about  the  latter  ground  inasmuch  as  we  are  of  opin- 
ion that  the  former  is  good  in  substance,  so  far  as  appears  from  any 
facts  stated  in  the  report.  The  plaintiff'  contends  that  there  was  no 
eviction  because  the  defendant  never  had  possession  of  the  room. 
Townsend  v.  Wharf  Co.,  117  Mass.  501 ;  Vanderpool  v.  Smith,  1  Daly 
(N.  Y.)  311.  If  the  question  were  material,  it  would  raise  the  diffi- 
culty that  while  the  defendant  had  possession  of  the  whole  land  and 
of  the  room  on  the  outside  considered  as  an  enclosed  cube,  yet  if 
the  analogy  of  the  cases  on  larceny  by  carriers  breaking  bulk  were 
followed,  he  w^ould  not  have  possession  of  the  contents  of  the  room; 
and,  by  the  same  argument,  perhaps  not  of  the  inside  of  the  room 
itself.  Y.  B.  13  Ed.  IV,  9,  pi.  5 ;  Fairfax,  J.,  in  Keilway,  160,  pi.  2 ; 
8  Edw.  II,  275 ;  s.  c.  Fitz.  Abr.  "Detinue,"  pi.  59 ;  2  Bish.  Cr.  Law 
(8th  Ed.)  §§  834,  860. 

The  true  reason  appears  from  the  old  books.  Perhaps  possession 
by  the  tenant  would  be  presumed  until  the  landlord's  refusal  gave  an 
expressly  adverse  character  to  the  landlord's  conduct,  inasmuch  as 
the  tenant  lawfully  might  have  unlocked  the  door.  But  it  does  not 
matter  whether  the  refusal  to  give  up  the  room  was  a  failure  to  per- 
form the  whole  contract  from  the  beginning,  or  a  partial  eviction  aft- 
er performance  at  the  outset.  The  difference  would  be  material  onfy 
if  there  were  a  question  of  waiver  involved.  But  there  is  no  such 
question  in  the  case.  The  tenant  entered  not  knowing  that  the  room 
was  locked,  and  no  fact  later  than  the  entry  is  recited  which  implied 
a  waiver.  All  that  appears  is  that  the  failure  to  open  the  room  con- 
tinued  during   the    tenancy,   and   that   the   tenant    insisted    upon    his 


628  RIGHTS  IN  THE  LAND   OF  ANOTHER  (Part  2 

rights.  There  being  no  waiver  the  plaintiff  could  not  recover  on  the 
express  contract  because  he  had  not  furnished  the  stipulated  consider- 
ation, and  he  could  not  recover  upon  an  implied  one  for  the  benefit 
actually  received  because  the  failure  to  furnish  the  whole  was  due 
to  his  own  willful  fault.  Leishman  v.  White,  1  xA.llen,  489;  Royce 
v.  Guggenheim,  106  Mass.  201,  202,  8  Am.  Rep.  322;  Smith  v.  Mc- 
Enany,  170  Mass.  26,  48  N.  E.  781,  64  Am.  St.  Rep.  272.  It  may 
be  that  in  this  class  of  cases  the  old  common  law  is  adhered  to  a  little 
more  rigidly  than  in  some  others.  See  Gillis  v.  Cobe,  177  Mass.  584, 
59  N.  E.  455.  The  absence  of  a  written  lease  makes  no  difference. 
Colbum  V.  Morrill,  117  Mass.  262,  264,  19  Am.  Rep.  415. 

The  distinction  taken  by  Tayl.  Landl.  &  T.  (8th  Ed.)  §  379,  between 
eviction  and  refusal  to  put  the  tenant  in  possession  of  some  privilege 
which  he  ought  to  have  enjoyed,  very  likely  is  sound  with  regard  to 
the  cases  which  the  author  cited  and  had  in  mind,  that  is  to  say,  with 
regard  to  cases  where  the  tenant  entered  and  occupied  the  demised 
premises,  and  there  was  a  subsequent  failure  to  perform  a  covenant  for 
an  improvement  or  one  affecting  the  enjoyment  of  the  premises.  Eth- 
eridge  v.  Osborn,  12  Wend.  (N.  Y.)  529 ;  News  Co.  v.  Brown,  103 
111.  317,  320.  See,,  also,  Allen  v.  Pell,  4  Wend.  (N.  Y.)  505.  And  so  it 
might  be  where  there  was  a  known  failure  at  the  outset  to  give  posses- 
sion of  all  the  stipulated  land  and  the  entry  of  the  tenant  showed  a  waiv- 
er*of  compliance  with  the  strict  terms  of  the  lease. 

Decree  affirmed.^" 


SMITH  v.  BARBER. 

(Supreme  Court  of  New. York,  Appellate  Division,  First  Department,  1906. 
112  App.  Div.  187,  98  N.  Y.   Supp.  365.) 

Ingraham,  J.°^  The  action  was  brought  to  recover  the  rent  re- 
served by  a  lease,  whereby  the  plaintiff  leased  certain  premises  to  the 
defendant,  together  with  the  costs  of  certain  improvements  on  the 
premises,  which  was,  under  the  lease,  to  be  paid  by  the  tenant.  On  the 
trial  the  court  excluded  evidence  oft'ered  by  the  defendant  to  sustain 
the  defense  set  up  in  the  answer,  and  directed  a  verdict  for  the  plain- 
tiff. Exceptions  were  taken  to  these  rulings  and  they  were  ordered 
to  be  heard  here  in  the  first  instance.  The  lease  is  annexed  to  the  com-  • 
plaint.  By  it  the  plaintiff  leased  to  the  defendant  the  office  on  the 
first  floor  fronting  on  Wall  and  Nevv  streets,  and  a  portion  of  the 
second  floor  fronting  on  Wall  and  New  streets,  in  a  building  in  course 
of  erection  at  the  comer  of  Wall  and  New  streets  in  the  city  of  New 
York,  to  be  used  as  offices  for  the  business  of  the  Equitable  Trust 

5  0 Ace:  McClurg  v.  Price,  59  Pa.  420,  98  Am.  Dec.  356  (1869).  See  SulU- 
van  V.  Schmitt,  93  App.  Div.  4G9,  87  N.  Y.  Supp.  714  (1904) ;  Penny  v.  Fell- 
ner,  6  Okl.  386,  50  Pac.  123   (1894). 

61  Part  of  the  opinion  is  omitted. 


Ch.  6)  EbNTS  629 

Company,  and  for  no  other  purpose,  "beginning  February  1,  1900, 
and  expiring  May  1,  1910,  at  a  yearly  rental  of  thirty-seven  thousand 
five  hundred  (37,500)  dollars,"  payable  in  equal  monthly  payments 
in  advance.    The  lease  provided: 

"No  compensation  or  claim  shall  be  made  by  the  tenant  by  reason 
of  inconvenience  or  annoyance  arising  from  the  necessity  of  repairing 
any  portion  of  the  building,  however  the  necessity  may  occur.  *  *  * 
And  it  is  further  understood  and  agreed  that  the  landlord  will  fit  up 
the  herein  demised  premises  in  a  proper  and  suitable  manner  for  the 
transaction  of  a  banking  and  trust  company  business,  the  cost  of  which 
in  excess  of  the  sum  of  four  thousand  (4,000)  dollars  is  to  be  paid  by 
the  tenant.    *     *    *  " 

This  lease  was  dated  September  27,  1899,  and  the  term  was  to  com- 
mence on  February  1,  1900.  The  action  was  brought  to  recover  the 
rent  from  February  1,  1900,  to  September  1,  1900,  and  also  for  the 
cost  of  fitting  up  the  demised  premises  in  excess  of  the  sum  of  $4,000, 
to  wit,  $11,068.73.    *    *    * 

On  the  trial  the  plaintiff  was  allowed  to  amend  his  complaint,  and 
subsequently  the  defendant  was  allowed  to  amend  *  *  *  para- 
graph 12  of  his  answer  so  that  the  same  read : 

"That  on  the  first  day  of  February,  1900,  and  for  a  long  time  there- 
after, plaintiff  was  in  possession  of  said  premises  by  his  tenants, 
agents,  servants,  contractors,  and  employes,  engaged  in  the  construc- 
tion, completion,  and  fitting  up  of  the  same.  That  said  tenants  in  pos- 
session of  said  premises  held  the  same  under  a  lease  made  by  the 
plaintifif  to  them  prior  to  the  making  of  the  lease  annexed  to  the  com- 
plaint herein,  and  said  tenants  were  holding  such  possession  under  title 
paramount  to  the  defendant  herein,  and  the  plaintiff  thereby  ex- 
cluded the  defendant  from  possession  of  a  portion  of  the  demised 
premises." 

On  the  trial  the  defendant  admitted  that  the  rent  sued  for  had  been 
demanded  and  not  paid.  The  following  facts  were  then  stipulated  by 
counsel : 

"At  the  time  the  parties  to  this  action  entered  into  the  lease,  a  por- 
tion of  the  first  floor  of  the  premises  covered  by  the  lease  was  occu- 
pied by  Seligsberg  &  Company.  Said  lease  had  been  made  by  the 
plaintiff  to  Sehgsberg  &  Company  on  or  about  May  1,  1899,  for  a 
term  expiring  May  1,  1900.  The  lease  was  an  oral  lease.  The  plaintiff 
was  notified  that  the  defendant  would  require  Seligsberg  &  Company 
to  vacate  the  premises  on  the  1st  of  February,  1900.  The  occupancy 
of  the  premises  by  Seligsberg  &  Company  delayed  the  completion  of 
the  improvements  in  the  premises,  and  some  of  the  work  could  not  be 
finished  until  they  vacated  on  that  date.  The  improvements  made  by 
the  plaintiff  in  fitting  up  the  premises  pursuant  to  the  lease  herein  were 
not  completed  on  February  1,  1900,  and  not  until  about  the  1st  of  June, 
1900,  when  they  were  completed." 


630  RIGHTS   IN   THE   LAND   OF  ANOTHER  (Part  2 

The  plaintiff,  while  conceding  these  facts,  objected  to  their  com- 
petency under  the  answer,  and  this  objection  was  sustained,  and  de- 
fendant excepted.    *    *    * 

The  real  question  presented  on  this  appeal  is  whether  the  defendant 
was  entitled  to  prove  as  a  defense  to  the  action  that  the  improvements 
upon  the  premises  were  not  completed. prior  to  February  1,  1900,  and 
that  from  February  to  May,  1900,  other  tenants  were  in  possession 
of  the  premises  leased  to  the  defendant  under  an  oral  lease  made  by 
the  plaintiff  prior  to  the  execution  of  the  lease  in  question  for  one 
year  from  May  1,  1899.  This  case  was  before  this  court  upon  a  for- 
mer appeal  from  an  order  setting  aside  a  verdict  in  favor  of  the  plain- 
tiff, and  granting  a  new  trial.  96  App.  Div.  236,  89  N.  Y.  Supp.  317. 
Although  there  was  some  discussion  in  the  opinion  as  to  the  rights 
of  the  plaintiff  and  the  defendant  under  this  lease,  it  does  not  seem 
that  that  question  was  decided.  The  court  held  that  certain  evi- 
dence which  was  admitted  had  no  bearing  upon  the  question  of  wheth- 
er the  defendant  on  February  1,  1900,  waived  his  right  to  rescind  the 
contract,  or  thereafter  acted  with  reference  to  the  premises  so  that 
the  jury  could  have  inferred,  by  assuming  dominion  over  the  premises, 
he  elected  to  continue  in  possession  under  the  lease;  that,  in  view  of 
the  course  which  the  trial  took,  the  evidence  which  was  improperly 
admitted,  and  the  erroneous  theory  upon  which  the  case  was  submit- 
ted to  the  jury,  the  conclusion  was  that  the  trial  judge  was  justified  in 
setting  aside  the  verdict,  and  granting  a  new  trial,  and  that  order  was 
therefore  affirmed.  The  court,  however,  in  discussing  the  question  as 
to  the  liability  of  the  defendant  for  this  rent,  said: 

"The  acceptance  of  the  lease,  therefore,  under  which  the  defendant 
obtained  the  right  to  the  use  of  the  entire  premises  from  the  first  of 
February,  did  not  render  him  Hable  for  the  rent,  where  a  substantial 
portion  thereof  was  held  by  another  tenant  under  a  valid  lease  from 
the  plaintiff,  and  where,  as  here,  the  defendant  never  went  into  actual 
occupancy  of  any  portion  of  the  premises.  Having  notified  the  plain- 
tiff of  the  obligation  resting  upon  him  of  getting  Seligsberg  &  Com- 
pany out,  and  no  action  having  been  taken,  so  far  as  appears,  by  the 
plaintiff  to  that  end,  the  defendant,  had  he  so  elected,  would  have  had 
the  legal  right  on  the  first  of  February  t6  notify  the  plaintiff'  that  he 
regarded  the  lease  as  terminated  and  canceled.  Upon  that  date,  when 
the  term  was  to  begin,  the  defendant  was  legally  put  to  his  election, 
and  it  was  entirely  competent  for  the  plaintiff  to  show,  as  was  at- 
tempted to  be  shown,  that  not  only  had  the  defendant  not  elected  to 
.terminate  the  lease,  but  that  his  acts  were  such  that  they  are  to  be 
legally  construed  into  a  waiver  of  the  condition  precedent  to  his  lia- 
bility for  rent,  namely,  his  obtaining  complete  possession." 

The  court  then  says :  "Where  a  person  enters  into  possession  of  a 
portion  of  the  premises,  he  is  liable  for  the  rent  of  the  whole ;  and  if 
he  has  not  full  possession  he  cannot  refuse  to  pay  the  rent,  but  his 


Ch.  6)  BENTS  631 

remedy  for  his  damages  arising  from  the  failure  to  receive  full  pos- 
session is  either  by  way  of  counterclaim  to  the  original  action  for  rent, 
or  by  way  of  an  independent  action." 

The  observation  here  would  seem  to  indicate  that  it  was  the  opinion 
of  the  court  that  tlie  defendant  would  be  liable  for  rent  for  the  period, 
unless  he  proved  that  he  elected  to  terminate  the  lease.  The  law  in 
this  state  in  relation  to  the  obligation  of  the  tenant  to  pay  rent  after 
the  beginning  of  the  term  does  not  depend  upon  the  possession  by 
the  tenant  of  the  demised  premises.  If  the  tenant  acquire  a  perfect 
title  to  the  premises  by  virtue  of  the  lease,  which  would  include  the 
right  of  possession,  then  he  is  bound  under  his  covenant  to  pay  rent, 
regardless  of  the  question  whether  or  not  he  actually  obtained  pos- 
session of  the  premises.  Gardner  v.  Keteltas,  3  Hill,  330,  38  Am. 
Dec.  637,  where  Nelson,  Chief  Justice,  says: 

"All  that  either  of  the  covenants  mentioned  exact  of  the  lessor  is 
that  he  shall  have  such  a  title  to  the  premises  at  the  time  as  shall  en- 
able him  to  give  a  free,  unincumbered  lease  for  the  term  demised. 
There  is  no  warranty,  express  or  implied,  against  the  acts  of  strangers. 
Hence,  if  the  lessee-  be  ousted  by  one  who  has  no  title,  the  law  leaves 
him  to  his  remedy  against  the  wrongdoer,  and  will  not  judge  that  the 
lessor  covenanted  against  the  wrongful  acts  of  strangers,  unless  the 
covenant  be  full  and  express  to  the  purpose.  *  *  *  j  admit  the 
covenant  of  quiet  enjoyment  means  to  insure  the  lessee  a  legal  right 
to  enter  and  enjoy  the  premises,  and  if  he  is  prevented  from  entering 
into  the  possession  by  a  person  already  in  under  a  paramount  title  the 
action  may  be  sustained.  That  was  decided  in  Ludwell  v,  Newman, 
6  T.  R.  458.  In  such  a  case  no  ouster  or  expulsion  is  necessary  on 
which  to  predicate  a  suit,  as  the  lessee  is  not  bound  to  enter  and  com- 
mit a  trespass."     *     *     * 

These  cases  all  recognize  the  rule  that  where  a  third  party  is  in  pos- 
session of  the  demised  premises,  claiming  possession  under  a  title 
paramount  to  the  title  of  the  lessor,  and  the  tenant  is  thereby  exclud- 
ed from  possession  of  the  premises,  there  can  be  no  recovery  for  rent 
under  the  covenant  in  the  lease.  The  amendment  of  the  defendant's 
answer,  whereby  the  defendant  as  a  defense  alleged  that  the  tenants  in 
possession  of  the  premises  held  the  same  under  a  lease  made  by  the 
plaintiff  to  them  prior  to  the  making  of  the  lease  to  the  defendant,  and 
that  the  said  tenants  were  holding  such  possession  under  a  title  para- 
mount to  the  defendant  herein,  and  plaintiff  thereby  excluded  the  de- 
fendant from  a  portion  of  the  premises,  was  a  good  answer  for  a  de- 
mand for  rent  of  the  premises  during  the  period  that  the  defendant 
was  excluded  from  the  premises.  It  was,  therefore,  competent  for 
the  defendant  tq  prove  under  this  answer  that  at  the  time  the  term 
commenced  the  premises  were  occupied  by  Seligsberg  &  Co.  under 
a  lease  from  the  plaintiff  which  extended  to  the  1st  of  May,  three 
months  after  the  defendant's  term  commenced,  and  that  the  defend- 
ant never  occupied  these  leased  premises. 


(532  RIGHTS  IN  THE   LAND  OF  ANOTHER  (Part  2 

I  think,  therefore,  that  the  exceptions  should  be  sustained,  and  a 
new  trial  ordered,  with  costs  to  the  defendant  to  abide  the  event.**^ 

O'BRiiiN,  P.  ].,  and  McLaughlin,  Clarke^,  and  Houghton,  JJ., 
concurred. 


SECTION  4.— WHAT  PAYMENTS  ARE  RENTS 


Y.  B.  12  H.  8.  MICH.  [1520]  pi.  5. 

Note  that  it  was  agreed:  If  one  makes  a  lease  of  goods  and  land 
for  a  year  and  the  land  is  recovered  against  him  but  he  keeps  the 
goods  until  the  end  of  the  term  the  rent  shall  be  apportioned. 


EMMOTT  V.  COLE. 

(Court  of  Queen's  Bench,  1591.     Cro.  Eliz.  255.)  88 

Debt  upon  an  obligation  made  ult'  March,  29  Eliz.  The  condition 
was,  to  perform  all  covenants,  conditions,  articles,  agreements  and 
clauses  in  an  indenture  bearing  the  same  date.  The  defendant  pleads 
the  indenture,  which  was  a  lease  for  years  of  certain  lands  and  stock 
of  cattle 'to  the  defendant  and  to  Tolfry,  rendering  twenty  pounds 
rent  per  annum,  and  all  the  covenants  and  other  clauses  in  it  were 
concerning  the  land;  and  pleads,  that  long  time  before  the  lessor 
had  any  thing  in  it,  one  C.  was  seised  of  the  land  in  fee,  and  ac- 
knowledged a  statute  to  J.  S.  and  that  after  the  lease  made,  viz.  29 
May,  29  Eliz.  the  conusee  sued  execution,  and  all  the  land  was  deliv- 
ered in  execution  (so  they  were  thereof  evicted) ;  and  that  after  the 
date  of  the  indenture,  until  execution  sued,  he  and  Tolfi-y  had  per- 
formed all  the  covenants,  conditions,  agreements  and  clauses  in  the 
said  indenture.     Upon  this  plea  it  was  demurred  in  law.     ♦     *     * 

The  matter  in  law  was,  if  a  lease  be  made  of  lands  and  goods  ren- 
dering rent,  if  the  land  be  evicted,  whether  all  the  rent  shall  be  gone, 
or  there  shall  be  an  apportionment  in  regard  of  the  goods ;  and  so 
the  non-payment  of  the  portion  for  the  rent  be  a  forfeiture  of  the 
bond.     And  he  said  there  shall  be  an  apportionment,  12  Hen.  8,  pi. 

62  Compare  United  States  Restaurant  &  Realty  Co.  v.  Schulte,  67  Misc. 
Rep.  633,  124  N.  Y.  Supp.  835   (1910). 

A.  leased  premises  to  B.,  occupation  to  begin  at  a  specified  date.  On  that 
date  a  former  sublessee,  whose  lease  had  expired,  was  in  J)ossession  of  part 
of  the  demised  premises  and  continued  to  occupy  this  part.  Held,  in  an 
action  by  A.  against  B.  for  the  rent  reserved  this  fact  is  no  defense  to  A.'3 
action.  Ward  v.  Edesheimer,  17  N.  Y.  Supp.  173  (1892).  See  Little  v.  Hudg- 
ins,  117  Ark.  272,  174  S.  W.  520  (1913). 

6  8  Part  of  the  opinion  is  omitted. 


Ch.  6)  BENTS  633 

11;  35  Hen.  8,  Dyer,  56,  if  the  goods  be  evicted  there  shall  be  an 
apportionment;    and  so  e  converso. 

Curia  contra  in  omnibus.     *     *     * 

For  the  matter  in  law,  there  shall  be  no  apportionment,  for  the  rent 
issueth  out  of  the  land,  and  follows  it;  and  so  Wray,  Chief  Justice, 
said  it  hath  been  heretofore  adjudged.  And  it  was  here  adjudged  that 
the  plaintiff  shall  be  barred."* 


NEWMAN  V.  ANDERTON. 
(Court  of  Common  Bench,  1806.     2  Bos.  &  P.  [N.  R.]  224.) 

Replevin.  The  plaintiff  in  his  declaration  complained  that  the  de- 
fendant took  certain  goods  and  chattels  of  the  plaintiff  in  a  bed-room 
and  shop,  and  unjustly  detained  them,  against  sureties  and  pledges. 
The  defendant  avowed  the  taking  in  the  bed-room,  because  "'the  plain- 
tiff, for  the  space  of  16  weeks  and  more  next  before,  and  ending,  &c 
enjoyed  the  said  bed-room,  in  which,  &c.  together  with  a  certain  oth- 
er room  and  apartment,  also  being  in  and  part  and  parcel  of  the  said 
dwelling-house  in  the  declaration  mentioned,  with  certain  furniture 
and  effects  with  which  the  said  bed-room  in  which,  &c.  and  the  said 
other  room  and  apartment,  with  the  appurtenants,  were  furnished  un- 
der a  demise  thereof  theretofore  made  by  the  defendant  to  the  plaintiff, 
at  the  weekly  rent  of  13s.  of  lawful  money  of  Great  Britain,  payable 
weekly  on  the  Thursday  in  every  week,  and  during  all  that  time  held 
the  same  of  the  defendant  by  virtue  of  the  said  demise,  as  his  ten- 
ant thereof."  And  because  £12.  were  in  arrear,  avowed  the  taking  and 
prayed  a  return. 

The  plaintiff  took  judgment  for  so  much  as  related  to  the  shop ;  and 
as  to  the  avowry,  pleaded  that  he  did  not  hold  tlie  said  bed-room  to- 
gether with  the  said  other  room  and  apartment  in  the  said  declaration 
mentioned,  and  certain  furniture  and  effects  with  which  the  said  other 
room  and  apartment  were  furnished  under  a  demise  thereof  theretofore 
made  by  the  defendant  to  the  plaintiff,  at  the  weekly  rent  of  13s.  pay- 
able on  the  Thursday  in  eveiy  week  in  manner  and  form,  &c. 

On  this  plea  issue  was  joined. 

At  the  trial  before  Sir  James  Mansfield,  Ch.  J.,  at  the  Westminster 
sittings  after  last  Hilary  term,  a  verdict  was  found  for  the  defendant. 

[Rule  nisi  to  set  aside  the  verdict.] 

Sir  James  Mansfield,  C.  J.  Cases  like  this  must  have  very  often 
occurred,  and  yet  it  does  not  appear  that  the  right  of  distress  has  ever 
before  been  called  in  question.  The  difficulty  of  the  case  consists  in 
this,  that  in  London  and  other  towns  it  scarcely  ever  happens  that 
any  house  is  let  without  some  goods  being  let  with  it,  and  yet  one 

5*  See  Le  Taverner's  Case,  Dyer,  56a  (1543);  Read  v.  Lawnse,  Dyer,  212b 
(1562). 


634  RIGHTS  IN  THE  LAND   OF  ANOTHER  (Part  2 

rent  is  always  reserved.  In  the  case  of  a  brew-house  it  is  common 
to  let  the  utensils  with  it,  and  yet  I  never  heard  it  doubted  that  the 
landlord  might  destrain  for  rent.  Whether  the  goods  be  worth  five 
shillings  or  five  hundred  pounds  the  case  must  be  the  same.  We  will 
inquire  into  the  matter,  and  give  our  opinion  in  a  few  days. 

Cur.  adv.  vult. 

On  this  day  Sir  James  Mansfield,  C.  J.,  said: 

Upon  this  question  no  authorities  have  been  cited  either  on  the  one 
side  or  the  other.  But  it  must  occur  constantly  that  the  value  of  de- 
mised premises  is  increased  by  the  goods  upon  the  premises,  and  yet 
the  rent  reserved  still  continues  to  issue  out  of  the  house  or  land,  and 
not  out  of  the  goods ;  for  rent  cannot  issue  out  of  goods.  In  Spen- 
cer's case,  5  Co.  17,  it  is  resolved  that  if  a  man  lease  sheep  or  other 
stock  of  cattle,  or  any  other  personal  goods,  for  any  time,  aod  the 
lessee  covenants  for  him  and  his  assigns  at  the  end  of  the  time  to  de- 
liver tlie  like  cattle  or  goods  as  good  as  the  things  letten  were,  or 
such  price  for  them,  and  the  lessee  assigns  the  sheep  over,  this  cov- 
enant shall  not  bind  the  assignee;  for  it  is  but  a  personal  contract; 
and  it  is  added  "the  same  law,  if  a  man  demises  a  house  and  land  for 
years  with  a  stock  or  sum  of  money,  rendering  rent,  and  the  lessee 
covenants  for  him,  his  executors,  administrators,  and  assigns,  to  de- 
liver the  stock  or  sum  of  money  at  the  end  of  the  term,  yet  tlie  as- 
signee shall  not  be  charged  with  this  covenant,  for  although  the  rent 
reserved  was  increased  in  respect  of  the  stock  or  sum,  yet  the  rent  did 
not  issue  out  of  the  stock  or  sum,  but  out  of  the  land  only."  The  ma- 
terial words  in  that  resolution  are  those  which  declare  tliat  where  land 
is  leased  with  stock  upon  it,  the  rent  still  continues  to  issue  out  of  the 
land  only.  In  that  case,  therefore,  as  well  as  any  other,  the  person  to 
whom  the  rent  is  due  may  distrain  for  the  same ;  and  consequently  tlie 
landlord  here,  who  was  not  paid  his  rent,  has  pursued  his  legal  remedy 
of  distress,  though  the  rent  issued  out  of  ready  furnished  lodgings. 

Rule  discharged.°^ 

5  0 Ace:  Mickle  v.  Miles,  31  Pa.  20  (1856);  Stein  v.  Stely  (Tex.  Llv.  App.) 
32  S.  W:  782   (1895). 

See  Farwell  v.  Dicliinson,  6  B.  &  C.  251  (1827) ;  Armstrong  v.  Cummings, 
58  How.  Prac.  (N.  Y.)  331    (1880). 

Compare  Cranston  v.  Rogers,  83  Ga.  750,  10  S.  E.  364  (1889). 


Ch.  6)  KENT8  635 

SALMON  et  al.  v.  MATTHEWS. 
(Court  of  Exchequer,  1S41.    8  Mees.  &  W.  827.) 
Assumpsit  by  the  assignees  of  a  bankrupt  for  tlie  use  and  occupa- 
tion of  a  house  and  the  use  of  the  furniture.     Plea,  non  assump- 

CI  f"  •'■  "1*  *** 

Alderson,  B.  In  this  case,  we  think  both  rules  ought  to  be  dis- 
charged. 

This  was  an  action  for  the  rent  of  a  ready  furnished  house.  The 
house  had  been  mortgaged  in  fee,  but  the  mortgagor  had  remained  in 
possession,  and  had  let  the  house  as  a  ready  furnished  house  to  the  de- 
fendant. After  this  the  mortgagor  became  bankrupt,  and  then,  by 
the  assent  of  his  assignees,  let  the  house  by  the  week  to  the  defend- 
ant. After  three  weeks'  occupation,  the  mortgagee  gave  notice  to  the 
tenant  to  pay  the  rent  to  him ;  and  it  was  paid.  The  present  action 
was  brought  by  the  assignees  of  the  bankrupt  to  recover  the  rent.  At 
the  trial  the  jury,  by  the  direction  of  Lord  Abinger,  found  a  verdict 
for  the  plaintiff  for  i40,  being,  as  was  admitted,  a  proper  verdict,  if 
the  assignees  were  entitled  to  any  compensation  in  respect  of  the  fur- 
niture which  belonged  to  them. 

My  brother  Adams,  on  behalf  of  the  defendant,  applied  for  leave 
to  enter  a  verdict  for  the  defendant,  on  the  ground  that,  under  this 
letting,  the  mortgagee  was  entitled  to  the  whole  rent.  On  the  other 
hand,  Mr.  Hill  applied  to  increase  the  damages  to  £82,  being  tlie 
amount  of  the  whole  rent,  which,  as  he  contended,  belonged  to  the 
assignees  of  the  bankrupt. 

We  think  the  verdict  is  right :  for  either  the  rent  may  be  apportion- 
ed, according  to  the  case  of  Dubytofte  v.  Curteene,  Cro.  Jac.  453,  cited 
by  Saunders,  in  his  argument  in  the  Dean  and  Chapter  of  Windsor  v. 
Cover,  2  Saund.  303;  or,  if  not,  it  is  clear  that,  upon  the  entry  of 
the  mortgagee  claiming  the  house,  and  having  no  interest  in  the  furni- 
ture, a  new  agreement  may  be  inferred  by  the  jury  to  take  the  house  at 
a  reasonable  rent  from  the  mortgagee,  and  to  pay  a  reasonable  amount 
as  a  compensation  for  the  use  of  the  furniture  to  the  assignees. 

If  so,  both  rules  are  to  be  discharged,  and  both  without  costs.  We 
mention  this  to  prevent  the  costs  of  these  rules  being  costs  in  the 
cause,  which  would  not  be  just. 

Rules  discharged.''^ 

56Acc.:  Buffum  v.  Deane,  4  Gray  (Mass.)  385  (1855);  Newton  v.  Speare 
Laundering  Co.,  19  R.  I.  546,  37  Atl.  11  (1896).  Contra:  Fay  v.  HoUoran, 
35  Barb.   (N.  Y.)  295  (1861). 

A.  leased  to  X.  a  mill  and  a  miller  (a  supposed  slave);  the  slave  had  pre- 
viously been  formally  emancipated  by  A.  and  left  X.'s  service.  Held,  in  an 
action  by  A.  for  the  rent,  X.  is  entitled  to  an  apportionment.  Newton  v. 
Wilson.  3  Hen.  &  M.  (Va.)  470  (1809). 

A.  leased  to  X.  a  furnished  house,  reserving  a  rent.  The  house  and  furni- 
ture wore  destroyed  by  fire  without  X.'s  fault.  Held,  X.  continues  liable 
for  the  rent  reserved.  Bussman  v.  Ganster,  72  Pa.  285  (1872).  Contra: 
Whi taker  v.  Hawley,  25  Kan.  074,  37  Am.  Rep.  277  (1881). 


636  BIGHTS  IN   THE   LAND   OF  ANOTHER  (Part  2 

HANCOCK  V.  AUSTIN. 
(Court  of  Common  Pleas,  1863.     14  C.  B.  [N.  S.]  634.) 

This  was  an  action  for  an  illegal  and  excessive  distress,  with  a 
count  for  tlie  conversion  of  the  plaintiff's  goods,  to  wit,  lace-machines. 

The  cause  was  tried  before  Erie,  C.  J.,  at  the  last  Summer  Assizes 
at  Derby.  .  The  facts  were  as  follows :  The  defendant  was  possessed 
of  a  factory  consisting  of  several  rooms  in  which  he  let  "standings" 
for  lace-machines,  supplying  the  steam-power  by  which  they  were  put 
in  motion,  and  reserving  to  himself  the  right  of  entering  the  rooms 
for  the  purpose  of  oiling  the  bearings  of  the  shafting, — portions  of  the 
same  room  being  sometimes  allotted  to  different  persons.  In  or  e  of 
these  rooms  the  plaintiff  had  hired  standing  for  three  lace-macl.ines, 
and  power,  for  which  he  was  to  pay  12s.  per  week.  The  rent  being 
in  arrear,  and  the  plaintiff  having  gone  out  and  locked  tlie  door  of  the 
room  where  the  machines  were,  the  defendant  placed  a  ladder  to  the 
window  (which  was  fastened  with  an  ordinary  hasp),  and  his  son, 
without  breaking  anything,  opened  the  window  and  got  into  the  room, 
whlen  the  plaintiff- entered  by  the  door  and  distrained  the  machines, 
and  afterwards  sold  them.     *     *     * 

ErlE,  C.  J.**^  This  is  an  action  brought  for  the  conversion  of  three 
lace-machines,  of  the  value,  as  the  jury  have  found,  of  £150.,  which 
were  seized  and  sold  by  the  defendant.  The  defendant  had  leave  to 
move  to  reduce  the  verdict  to  i40.  if  the  court  should  be  of  opinion 
that  under  the  circumstances  the  defendant  had  a  right  to  distrain ; 
inasmuch  as  in  that  case  he  would  not  be  liable  as  a  trespasser,  but 
only  to  such  damages  as  the  plaintiff  might  have  sustained  from 
any  illegality  in  the  mode  of  taking  or  disposing  of  the  distress.  But, 
if  the  defendant  had  no  right  to  distrain,  he  must  pay  the  full  value  of 
the  goods  taken.  *  *  *  The  first  question  is,  whether  there  was 
any  distrainable  rent,  there  being  no  demise  of  the  room,  but  only  a 
bargain  for  standing  for  the  plaintiff's  machines.  I  am  clearly  of 
opinion  that  the  stipulated  sum  of  12s.  a  week  was  not  a  rent  issuing 
out  of  the  realty,  but  only  a  payment  for  a  privilege  or  easement.  In 
no  sense  can  it  be  called  rent,  or  distrainable  for  as  rent :  but  the  own- 
er of  the  factory  is  put  to  his  action  to  enforce  payment  of  tlie  agreed 
sum.  *  *  *  It  follows,  therefore,  that  the  defendant  has  been 
guilty  of  a  trespass,  and  must  pay  tlie  value  of  the  goods.*** 

6  7  The  statement  of  facts  is  abridged  and  part  of  the  opinion  of  Erie, 
O.  J.,  and  the  opinion  of  Williams,  J.,  are  omitted. 

0  8A.  demised  to  X.  part  of  a  specified  room  and  power  to  drive  lace- 
making  machines,  at  a  specified  rent.  Held,  A.  may  distrain  for  rent  in 
arrear.     Selby  v.  Graves,  L.  R.  3  C.  P.  594   (1868). 

A.  leased  land  to  X.,  with  an  easement  of  way  over  other  lands  of  A.  In 
an  action  by  A.'s  assignee  ai^ainst  X.  for  rent  reserved  under  the  lease, 
held,  a  plea  that  before  the  accrual  of  the  said  rent  the  plaintiff  evicted  and 
has  since  kept  out  the  defendant  from  the  way  so  demised  is  bad  on  demur- 


Ch.  6)  BENTS  637 

FIRST  NAT.  BANK  OF  SIOUX  CITY  v.  FLYNN. 
(Supreme  Court  of  Iowa,  1902.     117  Iowa,  493,  91  N.  W.  784.) 

Action  to  recover  rent  alleged  to  be  due  under  a  lease,  and  to  en- 
force a  landlord's  lien  therefor  against  the  L.  Humbert  Company. 
One  Flynn,  as  trustee  in  bankruptcy  of  defendant  company,  sought 
to  controvert  plaintiff's  right  to  a  lien,  and  judgment  was  rendered 
for  plaintiff  establishing  its  lien  as  to  a  portion  of  the  land  claimed, 
from  which  judgment  plaintiff  and  Flynn,  trustee,  prosecute  separate 
appeals.  Affirmed  on  plaintiff's  appeal,  and  reversed  on  the  appeal 
of  the  trustee.  ' 

McClain,  J."^^  *  *  *  The  trial  court  received,  evidence  tending 
to  show  that,  while  the  lease  was  executed  six  months  from  June 
1,  1899,  at  the  agreed  rental  of  $122.30  per  month,  as  a  matter  of  fact 
the  amount  of  rent  to  be  paid  was  determined  by  adding  to  the  real 
rental  value  of  the  premises,  which,  under  a  previous  lease,  had  been 
$50  a  month,  such  additional  sum  as  that  the  payment  for  the  rent 
under  the  lease  would  satisfy  not  only  the  real  rental  value  of  the 
premises,  but  arrearages  of  rent  to  the  amount  of  some  $433 ;  and  the 
amount  to  be  paid  per  month  under  the  lease  for  each  month  was  sim- 
ply one-sixth  of  a  total  amount  agreed  upon  in  satisfaction  of  indebt- 
edness for  arrearage  rent  and  rent  for  the  six  months  for  which  the 
lease  was  executed.  It  is  contended  for  plaintiff  that  parol  evidence 
showing  these  facts  was  not  admissible,  on  the  ground  that  it  was 
thereby  attempted  to  vary  the  terms  of  a  written  instrument.  But  it 
is  certainly  competent  in  any  case  to  show  what  the  real  consideration 
for  a  contract  is,  even  though  the  contract  is  in  writing  and  recites 
the  consideration ;  ,  and  on  the  issue  as  to  whether  plaintiff  was  en- 
titled to  a  lien  under  this  lease  for  $733  it  was  proper  to  admit  evidence 
to  show  that  the  rent  agreed  to  be  paid  by  the  terms  of  the  lease  was 
not  the  real  rental  for  the  use  of  the  premises,  but  included  additional 
indebtedness,  for  which  plaintiff  was  attempting  to  secure  a  lien  by 
means  of  the  recitals  of  the  lease.  As  between  plaintiff  and  the  trus- 
tee in  bankruptcy,  it  was  material  only  to  determine  for  what  amount 
plaintiff  was  entitled  to  a  lien,  and  on  that  question  the  recitals  of  the 
lease  could  not  be  conclusive.  It  is  well  settled  that  a  landlord  can- 
not assert  a  lien  for  other  indebtedness  than  that  arising  from  the 
renting  of  the  premises  for  tlie  time  covered  by  the  lease,  and  that, 
if  he  attempts  to  do  so  in  such  way  as  to  render  it  impracticable  to 
determine  what  amount  is  due  for  the  lease  of  the  premises,  he  forfeits 
his  entire  lien.  Smith  v.  Dayton,  94  Iowa,  102,  62  N.  W.  650 ;  Lad- 
ner  v.  Balsley,  103  Iowa,  674,  72  N.  W.  787 ;  In  re  Wolf  (D.  C.)  98 
Fed.  74. 

rer.     Williams  v.  Hayward.  1  E.  &   E.  1040   (1S59).     See  Buzzard  v.  Capel, 
8  B.  &  C.  141  (1S28) :  Tonilinson  v.  Day,  5  Moo.  558  (1821) ;  Ca:rter  v.  Burr, 
39  Barb.  (N.  T.)  59  (1862). 
6  9  Part  of  the  opiniOB  is  omitted. 


638  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

That  is  exactly  what  the  plaintiff  did  in  this  case.  Having  a  claim 
against  the  L.  Humbert  Company  for  $433,  it  attempted  to  lump  that 
amount  in  with  a  charge  for  the  rental  of  the  premises  for  six  months, 
and  thereby  secure  a  landlord's  lien  under  the  last  lease  for  a  much 
larger  amount  than  that  for  which  the  premises  were  actually  rented. 
The  trial  court  assumed  that  the  real  rent  charged  for  the  premises 
under  the  last  lease  was  $50  per  month,  the  rate  at  which  the  prem- 
ises had  been  rented  under  the  previous  lease,  and  gave  plaintiff  a 
judgment  under  his  landlord's  attachment  for  that  amount.  But  this, 
we  think,  was  error.  It  does  not  appear  that  the  parties  agreed  on  a 
rental  of  $50  per  month,  but,  rather,  that  they  made  a  contract  by 
which,  if  the  tenant  should  pay  $122.30  each  month  for  six  months, 
he  would  satisfy  the  claim  of  the  plaintiff  for  delinquent  rent  under 
the  previous  lease,  and  have  the  use  of  the  premises  under  the  new 
lease.  The  representative  of  plaintiff  who  made  the  contract  of  lease 
testified  as  a  witness  that  the  premises,  with  slight  repairs,  might  have 
been  rented  for  $75  a  month ;  and  whether  or  not  it  was  the  purpose 
of  plaintiff  to  throw  off  a  part  of  the  claim  which  it  held  for  delin- 
quent rent  under  the  old  lease,  and  charge  a  higher  rental  for  the 
premises  during  the  new  lease,  does  not  appear.  It  is  enough  to  say 
that  the  plaintiff  so  managed  the  transaction  that  it  was  not  agreed 
what  the  rental  under  the  new  lease  actually  was,  and,  as  plaintiff  is  not 
entitled,  as  against  the  creditors  of  the  bankrupt,  to  enforce  its  lien 
for  more  than  the  real  rental,  it  should  have  been  held  to  have  for- 
feited its  lien  by  this  attempt  to  make  a  new  lease  cover  the  payment 
of  antecedent  indebtedness.  The  lower  court  erred,  therefore,  in  rec- 
ognizing plaintiff's  lien  as  to  any  portion  of  the  proceeds  of  the  at- 
tached property.^"  , 

CO  Ace,  that  failure  to  pay  a  contract  debt  cannot  be  distrained  for  as  for 
a  rent:  Paxton  v.  Kennedy,  70  Miss.  865,  12  South.  546  (1893).  See  Smith 
V.  Mapleback,  1  T.  R.  441  (1786) ;  Donellan  v.  Read,  3  B.  «&  Ad.  899  (1832) ; 
Miners'  Bank  of  Pottsville  v.  Heilner,  47  Pa.  452   (1864). 

"It  is  said  that  the  payment  of  taxes  is  part  of  the  return  made  by  the 
defendant  to  his  landlord  for  the  use  of  the  property,  and,  therefore,  prop- 
erly comes  under  the  definition  of  rent.  But  in  one  sense  the  performance 
of  every  covenant  on  the  part  of  the  lessee  is  a  return  made  by  the  tenant 
for  the  use  of  the  land.  Yet  it  would  hardly  be  contended  that  money  stip- 
ulated to  be  expended  in  repairs  or  for  insurance,  or  in  the  way  of  improve- 
ments, was  any  portion  of  the  rent.  Taxes,  being  payable  annually,  ap- 
proach, it  is  true,  to  the  idea  and  character  of  rent,  which  is  a  certain  year- 
ly return  reserved  to  the  landlord  in  money,  or  kind,  or  service  for  the  en- 
joyment of  the  freehold ;  but  they  are  distinguishable  from  rent  in  this, 
that  they  are  uncertain  both  as  to  amount  and  time  of  payment,  and  are 
payable  not  to  the  landlord,  but  to  the  government,  and  are  imposed  for 
the  benefit  of  the  public,  and  the  landlord  may,  by  the  terms  of  his  agree- 
ment with  the  tenant,  be  relieved  from  their  payment;  taxes  are  not,  on 
that  account,  any  more  rent  than  the  expenditure  of  money  for  insurance 
under  a  covenant  to  that  effect  on  the  part  of  tlie  lessee."  Slossdn,  J.,  in 
Garner  v.  Hannah,  13  N.  Y.  Super.  Ct.  262,  2G6  (1857). 

Compare  Neagle  v.  Kelly,  146  111.  460,  34  N.  E.  947  (1893);  Oedge  v. 
Schoenberger,  83  Ky.  91    (188.5). 

See,  also,  Constautine  v.  Wake,  31  N.  Y.  Super.  Ct.  239  (1869). 


Ch.  7)  WASTE  639 

CHAPTER  VII 
WASTE 


SECTION  1.— GENERAL  PRINCIPLES  OF  WASTE 


ST.  52  PIEN.  Ill,  ST.  OF  MARLBOROUGH  .[MARLBRIDGE] 
(1267),  c.  23,  §  2:  Also  fermors,  during  their  terms,  shall  not  make 
waste,  sale  nor  exile  of  house,  woods,  and  men,  nor  of  anything  be- 
longing to  the  tenements  that  they  have  to  ferm  without  special  license 
had  by  writing  of  covenant,  making  mention  that  they  may  do  it; 
which  thing,  if  they  do,  and  thereof  be  convict,  they  shall  yield  full 
damage,  and  shall  be  punished  by  amerciament  grievously. 


ST.  6  EDW.  I,  ST.  OF  GLOUCESTER  (1278),  c.  5:  It  is  pro- 
vided also  that  a  man  from  henceforth  shall  have  a  writ  of  waste  in 
the  Chancery  against  him  that  holdeth  by  law  of  England,  or  other- 
wise for  term  of  life,  or  for  term  of  years,  or  a  woman  in  dower; 
and  he  which  shall  be  attainted  of  waste  shall  lose  the  thing  that  he 
hath  wasted,  and  moreover  shall  recompence  thrice  so  much  as  the 
waste  shall  be  taxed  at. 


COKE'S  LITTLETON,  53a  et  seq. 

An  action  of  wast  doth  lie  against  tenant  by  the  curtesie,  tenant  in 
dower,  tenant  for  life,  for  yeares,  or  halfe  a  yeare,  or  gardian  in 
chivalry,  by  him  that  hath  the  immediate  estate  of  inheritance,  for 
wast  or  destruction  in  houses,  gardens,  woods,  trees,  or  in  lands, 
meadows,  &c.  or  in  exile  of  men  to  the  disherison  of  him  in  the  re- 
version or  remainder.  There  be  two  kinds  of  waste,  viz.  voluntary  or 
actuall,  and  permissive.  Wast  may  be  done  in  houses,  by  pulling  or 
prostrating  them  down,  or  by  suffering  the  same  to  be  uncovered, 
whereby  the  spars  or  rafters,  plaunchers,  or  other  timber  of  the  house 
are  rotten.  But  if  the  house  be  uncovered  when  the  tenant  commeth 
in,  it  is  no  wast  in  the  tenant  to  suffer  the  same  to  fall  downe.  But 
though  the  house  be  ruinous  at  the  tenant's  coming  in,  yet  if  he  pull  it 
downe,  it  is  wast  unlesse  he  reedifie  it  againe.  Also  if  glasse  windows 
(tho'  glased  by  the  tenant  himselfe)  be  broken  downe,  or  carried 
away,  it  is  wast,  for  the  glasse  is  part  of  his  house.  And  so  it  is  of 
wainscot,  benches,  doores,  windowes,  furnaces,  and  the  like,  annexed 
or  fixed  to  the  house  either  by  him  in  the  reversion,  or  the  tenant. 


G40  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Pail   2 

Though  there  be  no  timber  growing  upon  the  ground,  yet  the  tenant  at 
his  perill  must  keepe  the  houses  from  wasting.  If  the  tenant  doe  qt 
suffer  waste  to  be  done  in  houses,  yet  if  he  repaire  them  before  any 
action  brought,  there  Heth  no  action  of  waste  against  him,  but  he 
cannot  plead,  quod  non  fecit  vastum,  but  the  speciall  matter. 

A  wall  uncovered  when  the  tenant  commeth  in,  is  no  wast  if  it  be 
suffered  to  decay.  If  the  tenant  cut  downe  or  destroy  any  fruit  trees 
growing  in  the  garden  or  orchard,  it  is  waste;  but  if  such  trees  grow 
upon  any  of  the  ground  which  the  tenant  holdeth  out  of  the  garden  or 
orchard,  it  is  no  waste. 

If  the  tenant  build  a  new  house,  it  is  waste,  and  if  he  suffered  it  to 
be  wasted,  it  is  a  new  waste.  If  the  house  fall  downe  by  tempest,  or 
be  burnt  by  lightning,  or  prostrated  by  enemies  or  the  like,  without  a 
default  of  the  tenant,  or  was  ruinous  at  his  comming  in,  and  fall 
downe,  the  tenant  may  build  the  same  againe  with  such  materialls  as 
remaines,  and  with  other  timber  which  he  may  take  growing  on  the 
ground  for  his  habitation,  but  he  must  not  make  the  house  larger  then 
it  was.  If  th,e  house  be  discovered  by  tempest,  the  tenant  must  in 
convenient  time  repaire.it. 

If  the  tenant  of  a  dove-house,  warren,  parke,  vivary,  estangues,  or 
the  like  do  take  so  many,  as  such  sufficient  store  be  not  left  as  he 
found  when  he  came  in,  this  is  waste ;  and  to  suft'er  the  pale  to  decay, 
whereby  the  deere  is  dispersed,  is  waste. 

And  it  is  to  be  observed,  that  there  is  wast,  destruction  and  exile. 
Wast  properly  is  in  houses,  gardens,  (as  is  aforesaid)  in  timber  trees, 
(viz.  oak,  ash,  and  elme,  and  these  be  timber  trees  in  all  places)  either 
by  cutting  of  them  downe,  or  topping  of  them  or  doing  any  act  where- 
by the  timber  may  decay.  Also  in  countries  where  timber  is  scant, 
and  beeches  or  the  like  are  converted  to  building  for  the  habitation 
of  man,  or  the  like,  tliey  are  all  accounted  timber.  If  the  tenant  cut 
down  timber  trees,  or  such  as  are  accounted  timber,  as  is  aforesaid,  this 
is  wast;  and  if  he  suffer  the  young  germins  to  be  destroyed,  this  is 
destruction.  So  it  is,  if  the  tenant  cut  down  underwood,  (as  he  may 
by  law)  yet  if  he  suffer  the  young  germins  to  be  destroyed,  or  if  he 
stub  up  the  same,  this  is  destruction. 

Cutting  down  of  willowes,  beech,  birch,  aspe,  maple,  or  the  like, 
standing  in  the  defence  and  safeguard  of  the  house,  is  destruction.  If 
there  be  a  quickset  fence  of  white  thorne,  if  the  tenant  stub  it  up,  or 
suffer  it  to  be  destroyed,  this  is  destruction ;  and  for  all  these  and  the 
like  destructions  an  action  of  wast  lyeth.  The  cutting  of  dead  wood, 
that  is,  "ubi  arbores  sunt  aridae,  mortuae,  cavae,  non  existentes  mare- 
mium,  nee  portantus  fructus,  hex  folia  in  sestate,"  is  no  v/ast;  but 
turning  of  trees  to  coles  for  fewell,  when  there  is  sufficient  dead  wood, 
is  wast. 

If  the  tenant  suffer  the  houses  to  be  wasted,  and  then  fell  down  tim- 
ber to  repaire  the  same,  this  is  a  double  wast.  Digging  for  gravel, 
lime,  clay,  brick,  earth,  stone,  or  the  like,  or  for  mines  of  mettall,  coale, 


Ch.  7)  WASTE  641 

or  the  like,  hidden  in  the  earth,  and  were  not  open  when  the  tenant 
came  in,  is  wast ;  but  the  tenant  may  dig  for  gravell  or  clay  for  the 
reparation  of  the  house,  as  well  as  he  may -take  convenient  timber 
trees. 

It  is  wast  to  suffer  a  wall  of  tlie  sea  to  be  in  decay  so  as  by  the  flow- 
ing and  reflowing  of  the  sea,  the  meadow  or  marsh  is  surrounded, 
whereby  the  same  becomes  unprofitable ;  but  if  it  be  surrounded,  sud- 
denly by  the  rage  or  violence  of  the  sea,  occasioned  by  winds,  tempest, 
or  the  like,  without  any  default  in  the  tenant,  this  is  no  wast  punish- 
able. So  it  is,  if  thte  tenant  repaire  not  the  bankes  or  walls  against 
rivers,  or  other  waters,  whereby  the  meadows  or  marshes  be  sur- 
rounded, and  become  rushy  and  unprofitable. 

If  tlie  tenant  convert  arable  land  into  wood,  or  e  converso,  or  mead- 
ow into  arable,  it  is  waste,  for  it  changeth  not  onely  the  course  of  his 
husbandry,  but  the  proofe  of  his  evidence. 

The  tenant  may  take  sufficient  wood  to  repaire  the  walls,  pales,  fenc- 
es, hedges,  and  ditches,  as  he  found  them ;  but  he  can  make  no  new : 
and  he  may  take  also  sufficient  plowbote,  firebote,  and  other  housbote. 

The  tenant  cutteth  downe  trees  for  reparations  and  selleth  them,  and 
after  buyeth  them  againe,  and  imploys  them  about  necessary  repara- 
tions, yet  it  is  wast  by  the  vendition  :  he  cannot  sell  trees,  and  with  the 
money  cover  the  house:  burning  of  the  house  by  negligence  or  mis- 
chance is  waste.     *     *     * 

A  prohibition  of  waste  did  lye  against  tenant  by  the  curtesie,  tenant 
in  dower,  and  a  gardian  in  chivalry,  by  the  common  law,  but  not 
against  tenant  for  life  or  yeares,  because  they  came  in  by  their  own 
act,  and  he  might  have  provided  that  no  waste  should  be  done.    *    *    * 

There  is  waste  of  a  small  value,  as  Bracton  saith,  "Nisi  vastum  ita 
modicum  sit  propter  quod  non  sit  inquisitio  facienda."  Yet  trees  ta 
the  value  of  three  shillings  and  foure  pence  hath  beene  adjudged  wast, 
and  many  things  together  may  make  waste  to  a  value.     *     *     * 

In  many  cases  a  tenant  for  Hfe  or  years  may  fell  down  timber  to 
make  reparations  albeit  he  be  not  compellable  thereunto,  and  shall  not 
be  punished  for  the  same  in  any  action  of  waste.  As  if  a  house  be 
ruinous  at  the  time  of  the  lease  made,  if  the  lessee  suffer  the  house 
to  fall  down  he  is  not  punishable,  for  he  is  not  bound  by  law  to  repaire 
the  house  in  that  case.  And  yet  if  he  cut  down  timber  upon  the  ground 
so  letten,  and  repaire  it,  he  may  well  justifie  it;  and  the  reason  is,  for 
that  the  law  doth  favour  the  supportation  or  maintenance  of  houses 
of  habitation  for  mankind.  *  *  *  a  man  hath  land  in  which  there 
is  a  mine  of  coales,  or  of  the  like,  and  maketh  a  lease  of  the  land  (with- 
out mentioning  any  mines)  for  life  or  for  yeares,  the  lessee  for  such 
mines  as  were  open  at  the  time  of  the  lease  made,  may  digge  and  take 
the  profits  thereof.  But  he  cannot  digge  for  any  new  mine  that  was 
not  open  at  the  time  of  the  lease  made,  for  that  should  be  adjudged 
wastfe.  And  if  there  be  open  mines  and  the  owner  make  a  lease  of 
Big. Rights — 41 


642  *         RIGHTS  IN  THE   LAND   OF  ANOTHER  (Part  2 

the  land,  with  the  mines  therein,  this  shall  extend  to  the  open  mines 
onely,  and  not  to  any  hidden  mine :  but  if  there  be  no  open  mine,  and 
the  lease  is  made  of  the  land  together  with  all  mines  therein,  there  the 
lessee  may  digge  for  mines,  and  enjoy  the  benefit  thereof,  otherwise 
those  words  should  be  void,  I  have  been  the  more  spacious  concern- 
ing this  learning  of  waste,  for  that  it  is  most  necessary  to  be  knowne 
of  all  men.     *     *     * 


COLE  V.  GREEN. 

(King's  Bench  and  House  of  Lords,  1671.     1  Lev.  309.)i 

Waste  in  the  Hustings  London,  on  a  Lease  for  Years  of  a  Brew- 
House  in  London.  The  Defendant  pleads  no  Waste,  and  Issue  there- 
on ;  and  on  the  Evidence  it  appeared.  That  the  Defendant  took  down 
the  Brew-House,  and  erected  several  Houses  in  the  Place,  and  im- 
proved the  Rent  from  il20.  to  i200.  per  Annum;  And  by  the  Direc- 
»tion  of  Howel,  Deputy  Recorder,  before  whom  the  Cause  was  tried; 
for  that  thereby  the  Nature  of  the  Thing,  and  the  Evidence  thereof 
was  altered,  the  Jury  found  it  Waste,  and  gave  single  Damages  £200. 
which  were  trebled  to  -£600.  But  then  Judgment  was  arrested,  on 
Motion  before  Sir  William  Wilde,  the  Recorder  himself,  for  the  In- 
sufficiency of  the  Verdict.  *  *  *  Rule  made  for  a  new  Trial ; 
whereupon  the  Jury,  in  respect  of  the  Melioration,  or  Improvement, 
by  the  Direction  of  Sir  William  Wylde,  before  whom  the  new  Trial 
was,  gave  a  Verdict  for  the  Defendant,  and  Judgment  was  thereupon 
given  for  the  Defendant. 

On  which  Judgment  Cole  brought  a  Writ  of  Error  before  Vaughn 
Chief  Justice  of  the  Common  Pleas,  Hale  Chief  Baron,  Turner,  and 
Rainsford,  and  Moreton  Justices.  *  *  *  And  upon  this  all  the 
Judges  agreed,  and  reversed  the  Judgment,  and  gave  Judgment  for 
the  Plaintiff  on  the  first  Verdict. 

On  which  Judgment  of  Reversal  the  Defendant  brought  a  Writ  of 
Error  in  the  House  of  Peers. 

[The  House  of  Lords  affirmed  the  judgment  and  it  was  remanded 
for  execution,  whereupon  the  defendant  sought  an  injunction  to  stay 
the  execution.] 

In  regard  there  had  been  one  Verdict  for  the  Plaintiff,  and  another 
for  the  Defendant,  the  Lord  Keeper  Bridgman,  after  all  those  Pro- 
ceedings, directed  a  new  Trial  at  the  King's  Bench  Bar,  to  try  in  a 
feigned  Issue,  Whether  Waste  of  not  ?  And  on  the  Trial  before  Hale, 
then  Chief  Justice,  it  was  resolved  to  be  Waste  notwithstanding  the 
melioration,  by  Reason  of  the  Alteration  of  the  Nature  of  the  Thing, 

1  The  case  Is  also  reported  2  Saimd.  252  (1671),  where  the  lease  is  statod 
to  have  been  for  51  years. 


Ch.  7)  WASTE  643 

and  of  the  Evidence  thereof;  and  the  Jury  gave  their  Verdict  accord- 
ingly, and  100  Marks  single  Damages,  which  trebled,  amounted  to 
£200.  which  the  Chancery  compelled  Cole  to  take.    *    *    * 


KEEPERS  AND  GOVERNORS  OF  THE  POSSESSIONS,  ETC., 
OF  HARROW  SCHOOL  v.  ALDERTON. 

(Court  of  Common  Pleas,  ISOO.     2  Bos.  &  P.  86.) 

This  was  an  action  of  waste  on  the  statute  of  Gloucester,  for  plough- 
ing up  three  closes  of  meadow  land,  and  converting  the  same  into  gar- 
den ground,  and  building  thereupon,  to  the  damage  of  the  Plaintiffs 
£500.    Plea,  Not  guilty. 

The  cause  was  tried  before  Heath,  J.,  at  the  Westminster  sittings 
after  last  Trinity  Term,  when  the  jury  found  a  verdict  for  the  Plain- 
tiff with  three  farthings  damages,  being  one  farthing  for  each  close. 

In  the  Michaelmas  Term  following,  Cockell,  Serjt.,  obtained  a 
Rule,  calling  on  the  Plaintiff  to  shew  c^use  why  the  judgment  should 
not  be  entered  up  for  the  Defendant,  on  account  of  the  smallness  of 
the  damages  recovered,  on  the  principle  that  de  minimis  non  curat 
lex ;  and  cited  in  support  of  the  application  Bro.  Abr.  tit.  Waste,  pi. 
123,  Co.  Lit.  54,  a.  2  Inst.  306.  Cro.  Car.  414.  452.'  Finch's  Law,  lib. 
1  cap.  3.  s.  34.  adopted  3  Black.  Com.  228.  Vin.  Abr.  tit.  Waste  N. 
and  Buller's  N.  P.  120. 

Shepherd,  Serjt.,  now  shewed  cause.  There  are  two  species  of 
waste,  that  which  consists  in  the  abuse  of  the  thing  in  which  the  waste 
is  committed,  and  the  consequent  deterioration  of  its  value,;  and  that 
which  changes  the  nature  of  the  thing  itself.  In  waste  of  the  first 
kind,  if  the  damage  be  very  small,  it  may  be  right  that  no  action  should 
lie,  because  the  deterioration  is  the  essence  of  the  waste.  But  where 
the  waste  consists  in  the  alteration  of  the  property,  that  alteration  is 
the  essence  of  the  waste.  If  then  the  amount  of  pecuniary  damage  be 
the  criterion  6i  this  kirid  of  waste  also,  the  distinction  will  no  longer 
exist ;  for  it  will  then  be  the  deterioration  of  value,  and  not  the  altera- 
tion of  the  property,  which  will  constitute  the  waste. 

Lord  Eldon,  Ch.  J.  I  confess,  that  when  this  application  was  first 
made,  I  was  not  aware,  that  under  the  circumstances  of  the  case  the 
Defendant  was  entitled  to  demand  judgment:  but  my  Brother  Heath 
has  satisfied  me,  that  the  application  is  supported  by  the  current  of 
authorities.  I  do  not,  indeed,  see  precisely  on  what  ground  those  de- 
cisions have  proceeded ;  though  I  can  easily  conceive  many  cases  in 
which  it  may  be  extremely  unconscientious  for  a  Plaintiff  to  take  ad- 
vantage of  his  judgment,  where  such  small  damages  have  been  recov- 
ered as  in  this  case.  As,  if  the  owner  of  land  suft'er  his  tenant  to  lay 
out  money  upon  the  premises,  and  then  bring  an  action  of  waste  to 
recover  possession  when  the  land  may  have  been  improved  to  ten  times 


644  niGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

the  original  value.  The  cases  do  not  appear  to  authorize  the  distinc- 
tion contended  for  by  my  Brother  Shepherd.  Whether  the  waste  com- 
mitted be  by  alteration  of  the  property,  or  by  deterioration,  still  the 
jury,  in  estimating  the  damages,  take  into  consideration  the  injury 
which  the  Plaintiff  has  sustained;  and  in  this  case  the  jury  have  es- 
timated the  damage  which  these  Plaintiffs  have  sustained,  by  the  al- 
teration of  their  property  at  three  farthings  only.  The  Courts  of 
Common  Law  seem  to  have  entertained  a  sort  of  equitable  jurisdiction 
in  cases  of  this  kind. 

He;aTh,  J.  This  doctrine  prevailed  as  early  as  the  time  of  Bracton, 
who  wrote  before  the  statute  of  Gloucester.  With  respect  to  the  dis- 
tinction taken,  there  is  no  reason  why  pecuniary  damages  should  not 
be  assessed  for  the  alteration  of  property  as  well  as  for  the  deteriora- 
tion. Thus,  if  a  tenant  convert  a  furze-brake  in  which  game  have 
bred  into  arable  or  pasture,  by  which  its  real  value  would  be  improved, 
but  its  value  to  the  landlord  depreciated,  it  would  be  the  business  of 
the  jury  to  assess  damages  to  the  landlord  thereon. 

RooKE,  J.    I  am  of  the  same  opinion. 

Rule  absolute.* 


OWEN  v.  HYDE. 

(Supreme-  Court  of  Tennessee,  1834.    6  Yerg.  [14  Tenn.]  334,  27  Am.  Dec. 

467.) 

This  is  an  action  for  waste,  prosecuted  by  the  plaintiff,  who  is  en- 
titled to  the  reversion  of  part  of  the  dower  estate  of  the  defendant. 
The  declaration  alleges,  that  the  waste  was  committed  by  removing 
the  timber  from  fifteen  acres  of  the  dower  estate. 

The  proof  shows  that  Henry  Hyde  died  intestate,  seized  and  pos- 
<ipssed  of  seven  hundred  and  fifty-six  acres  of  land,  leaving  his  wid- 
ow (the  defendant)  and  eight  children.  The  widow's  dower  was  laid 
off  according  to  law;  and  soon  afterwards  commissioners  were  ap- 
pointed by  the  county  court  to  divide  the  land  amongst  the  children. 
The  whole  tract,  including  the  dower,  was  laid  off  into  eight  lots; 
one  of  the  lots,  of  seventy-six  and  a  half  acres,  was  set  apart  for 
Charlotte  Hyde,  one  of  the  children  of  the  intestate.  She  intermar- 
ried with   Cummings,  and  they  sold  and  conveyed  to  the  plaintiff. 

2  Contra:    Provost  of  Queen's  College  v.  Hallett,  14  East,  489  (1811). 

A.  was  a  tenant  for  life  of  two  meadows.  He  took  down  the  fences,  built 
a  road  through  the  land,  and  drained  it  (in  so  doing  changing  the  surface 
of  the  laud),  and  dug  cellars  and  erected  wooden  houses  on  the  land.  The 
jury  found  that,  even  if  the  houses  were  taken  off,  the  land  would  be  worth 
more  for  agricultural  purposes  as  a  result  of  A.'s  acts.  Held,  A.  Is  not 
liable  to  B.,  the  remainderman  in  fee,  for  waste.  Pynchon  v.  Stearns,  11 
Mete.  (Mass.)  304,  45  Am.  Dec.  207  (184G).  Compare  Young  v.  Spencer,  10 
Barn.  &  C.  145  (1829) ;  see  Jones  v.  Chappell,  L.  K.  20  Eq.  539  (1875) ;  West 
Ham  Central  Charity  Board  v.  East  London  Waterworks  Co.,  [1900]  1  Ch. 

I 


Ch.  7)  '  WASTE  645 

About  one  half  of  this  lot  was  embraced  within  the  portion  set  apart 
for  the  dower.  The  dower  estate  contained  upwards  of  one  hundred 
acres  of  cleared  land,  the  greater  part  of  which  was  much  worn.  The 
fifteen  acres  complained  of,  was  part  of  the  dower  estate,  which 
was  included  in  the  lot  belonging  to  the  plaintiff,  and  which  was 
cleared  for  the  purposes  of  cultivation.  It  was  the  best  land  and  the 
most  convenient  for  farming  purposes  of  any  of  the  timbered  land 
on  the  dower  estate.  The  defendant  had  but  a  small  force,  and  there 
was  a  sufficient  quantity  of  land  cleared  upon  the  dower  estate  for 
her  support  before  she  cleared  the  fifteen  acres,  A  portion  of  the 
timber  cut  from  the  lot  of  Charlotte  was  used  to  erect  fences  on  oth- 
er lots  of  the  dower  estate.  The  timber  cut  off  was  valuable,  worth 
three  or  four  hundred  dollars ;  but  there  was  timber  enough  left,  for 
the  permanent  use  of  the  dower  estate.  The  court  charged  the  jury, 
among  other  things  not  excepted  to,  "that  though  there  may  be  a 
sufficient  quantity  of  cleared  land  for  the  support  of  the  dowager  and 
her  family  on  the  dower  estate,  yet  she  may  go  in  and  clear  land  and 
cut  down  timber  for  the  purpose  of  cultivation,  provided  she  leaves 
wood  and  timber  sufficient  for  the  permanent  use  of  the  dower  estate." 

Green,  J.,  delivered  the  opinion  of  the  court. 

The  question  here  is,  whether  the  Judge  erred  in  his  charge  to  the 
jury. 

In  order  to  the  formation  of  a  correct  opinion  in  this  cause,  it  is 
proper  to  remark,  that  whatever  may  be  said  in  relation  to  the  de- 
fendant's rights  and  liabilities  must  be  understood  as  relating  to 
the  whole  dower  estate.  She  was  not  bound  to  notice  any  division 
which  may  have  been  made  of  the  reversionary  interest  among  the 
heirs ;  she  took  the  dower  estate  as  it  was  assigned  to  her  with  the 
rights  and  liabilities  which  attach  to  that  as  a  whole;  and  although 
she  may  have  destroyed  all  the  timber  which  was  on  that  part  of  one 
of  the  lots  included  in  her  dower,  yet,  if  the  dower  estate  was  not  in- 
jured, but  benefited  thereby,  she  would  not  be  guilty  of  waste;  for 
that  is  the  great  criterion  by  which  to  determine  whether  waste  has 
been  committed,  as  that  only  which  does  a  lasting  damage  to  the  in- 
heritance, or  depreciates  its  value,  is  waste.  It  is  clear,  that  the  cut- 
ting timber  and  clearing  land  instead  of  being  waste  would  often 
greatly  enhance  the  value  of  the  inheritance.  In  this  country,  where 
so  large  a  portion  of  the  lands  are  wild,  and  yet  in  forest,  it  is  often 
of  great  advantage  to  the  estate  to  destroy  the  timber  and  reduce  the 
land  to  a  state  of  cultivation.    3  Dane's  Ab.  214,  215;  4  Kent  76-7. 

It  is  not  a  question  then,  whether  the  dowager  cut  the  timber  from 
this  fifteen  acres  as  a  necessary  means  of  support,  but  it  is,  did  she 
materially  injure  the  dower  estate  thereby;  if  so,  she  would  be 
liable  to  an  action  for  waste,  but  if  not,  although  the  clearing  was 
not  necessary  for  her  support,  and  although  she  may  have  done  it 
for  the  purposes  of  profit,  she  is  not  liable.     If  the  cleared  land  on 


046  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

the  dower  estate  was  old  and  worn,  and  if  the  proportion  of  wood  land 
was  such  as  that  a  prudent  farmer  would  have  considered  it  best  to 
reduce  a  portion  of  it  to  cultivation,  whereby  to  relieve  the  old  land 
from  excess  of  culture,  and  thus  enhance  the  value  of  the  whole  dow- 
er estate,  such  clearing  would  not  be  waste,  provided,  "sufficient  tim- 
ber for  the  permanent  use  of  the  dower  estate"  were  left.  Jackson  v. 
Brownson,  7  Johns.  (N.  Y.)  227,  5  Am.  Dec.  258 ;  4  Kent,  7^. 

In  respect  to  the  privilege  of  a  tenant  for  life,  in  the  destruction  of 
timber,  the  law  must  necessarily  be  varied  in  this  country  from  the 
English  doctrine.  There,  we  could  not  well  conceive  of  the  destruc- 
tion of  timber  without  attaching  to  it  the  idea  of  an  injury  to  the  es- 
tate, as  timber  is  scarce,  and  forest  trees  are  planted  and  raised  for 
fuel  and  for  timber,  it  is  of  too  much  value  to  permit  its  unnecessary 
destruction.  That  not  being  the  state  of  things  here,  but  on  the  con- 
trary, as  a  benefit  often  results  to  the  estate  from  clearing  away  the 
timber,  it  would  be  absurd  to  apply  the  rigid  principles  of  the  English 
law  to  a  state  of  things  wholly  variant  from  theirs. 

We  are,  therefore  of  opinion  there  was  no  error  in  the  charge  of 
the  court,  and  order  the  judgment  to  be  affirmed. 

Judgment  affirmed.' 


DAVIS  V.  GILLIAM  et  al. 
(Supreme  Court  of  North  Carolina,   1S4S.     40   N.   C.   308.) 

Appeal  from  an  interlocutory  decree  of  the  Court  of  Equity  of 
Martin  county,  at  the  Fall  Term,  1848,  perpetuating  an  injunction 
theretofore  granted  in  the  cause,  his  Honor  Judge  Caldwell  presiding. 

The  bill  is  to  restrain  waste;  and  upon  the  bill  and  answer  the 
case  is  this.  Maer  and  wife  were  seised  in  possession  of  land  in  fee 
in  her  right  and  had  issue ;  and  a  judgment  was  had  against  Maer  and 
on  a  fieri  facias  the  land  was  purchased  by  the  defendant  in  1833.  In 
1838,  Maer  and  wife  assigned  the  reversion  to  the  plaintiff;  and,  in 
April,  1848,  Maer  and  wife  being  still  living,  this  bill  was  filed  for  an 
account  of  the  proceeds  of  timber,  shingles  and  staves,  made  of  the 
oak  and  cypress  timber,  that  had  been  felled  on  the  land  and  sold,  and 
for  an  injunction  against  cutting  any  more  for  sale.  The  land  con- 
sists of  two  tracts.  One  of  them  contains  100  acres,  of  which  the  de- 
fendant had  about  40  in  cultivation.  The  residue  thereof  is  what  is 
called  swamp,  on  the  Roanoke,  which  lies  so  low,  that,  for  the  greater 
part  of  the  year,  it  is  covered  by  water,  and  in  its  natural  state,  is 
unfit  for  agricultural  cultivation,  if  the  timber  on  it  were  all  felled. 

sAcc:  Keeler  v.  Eastman,  11  Vt.  293  (1839);  Wilkinson  v.  Wilkinson,  59 
Wis.  557,  18  N.  W.  527  (1884).  Compare  Dasliwood  v.  Magniac,  [1894]  3  Ch. 
300. 


Ch.  7)  WASTE  -  647 

The  other  tract  contains  250  acres,  of  which  150  consists  of  high  land, 
and  100  acres  of  swamp  like  the  other.  On  the  highland  there  was 
once  a  field  of  40  acres  in  cultivation ;  but  it  was  exhausted  and  turn- 
ed out  some  years  before  the  defendant  purchased,  and  is  still  in 
that  state.  The  residue  of  the  high  land  is  broken  and  of  but  httle 
value  for  cultivation;  but  it  has  on  it  oak  and  other  timber,  fit  for 
staves  and  boards.  The  swamp  on  each  tract  is  heavily  timbered 
with  cypress  and  other  growths;  and  in  1846,  the  defendant  sold 
cypress  timber  from  the  first  tract,  to  the  value  of  $100,  and  in  1847 
and  in  1848,  he  felled  cypress  in  the  swamp  of  the  other  tract,  of  which 
he  made  shingles,  and  red  oaks  on  the  high  land  of  that  tract,  of 
which  he  made  staves,  to  the  value  of  about  $900 — of  which  he  had 
sold  a  part  and  was  about  to  sell  the  other  part,  when  the  bill  was  filed. 
The  timber  thus  felled  is  not  of  one  twentieth  part  of  the  value  of  all 
the  timber  on  the  several  tracts,  and  there  is  a  great  abundance  left 
for  fencing,  fire  wood  and  the  like.  But  the  defendant  insists  on  the 
right  to  continue  the  cutting  of  the  timber  on  the  swamp  land,  and 
also  to  some  extent  more  on  the  high  land. 

On  the  hearing,  the  injunction  was  perpetuated  and  an  account  or- 
dered;  but  the  defendant  was  allowed  to  appeal. 

RuFFiN,  C.  J.*  The  husband  was  dispunishable  for  waste,  because, 
while  in  possession,  he  was  not  tenant  for  life  in  his  own  right,  but 
was  seised  with  his  wife  in  fee  in  her  right.  Besides,  the  wife,  in 
whom  the  inheritance  was,  could  not  sue  him.  But  it  is  otherwise 
with  the  defendant.  For,  although  he  purchased  the  husband's  estate, 
his  seisin  and  possession  are  several,  and  he  is  strictly  a  tenant  for 
the  life  of  the  husband. 

The  case  is  similar  to  that  mentioned  by  Lord  Coke  of  tenant  in 
tail  after  possibility  of  issue  extinct,  who  was  not  liable  for  waste 
in  respect  that  he  once  had  the  inheritance  in  him.  But  the  privilege 
was  personal,  and  his  feoffee  was  but  tenant  for  life,  and  as  such,  lia- 
ble for  waste. 

The  question,  then,  is,  whether  the  acts  done  and  contemplated  by 
the  defendant  amount  to  waste.  We  think  they  do,  and  the  plaintiff 
had  the  right  to  the  decree,  both  as  to  the  injunction  and  the  account. 
Of  course  the  question  is  to  be  treated,  as  embracing  the  case  of  dow- 
er as  well  as  curtesy.  *  *  *  A  tenant  for  a  limited  period,  or  a 
particular  estate,  cannot  rightfully  so  treat  the  estate  as  to  destroy 
the  value  of  the  reversion,  or  materially  reduce  it  below  what  it  would 
be,  regard  being  had  merely  to  the  postponement  of  the  enjoyment. 
The  tenant  may  use  the  estate,  but  not  so  as  to  take  from  it  its  intrinsic 
worth.     *     *     * 

We  should  hold,  as  the  state  of  the  country  now  is,  that  a  tenant 
for  life  of  land,  entirely  wild,  might  clear  as  much  of  it  for  cultiva- 

*  Part  of  the  opinion  is  omitted. 


G48  RIGHTS  IN  THE   LAND   OF  ANOTHER  (Part  2 

tion  as  a  prudent  owner  of  the  fee  would,  and  might  sell  the  timber 
that  grew  on  that  part  of  the  land.  Clearing  for  cultivation  has,  ac- 
cording to  the  decisions,  peculiar  claims  for  protection;  and  a  sale 
of  the  timber  from  the  field  cleared  may  be  justly  made,  in  compensa- 
tion for  clearing  and  bringing  it  into  cultivation.^  But  it  seems  al- 
together unjust,  that  a  particular  tenant  should  take  off  the  timber, 
without  any  adequate  compensation  to  the  estate  for  the  loss  of  it.  For 
he  takes,  in  that  case,  not  the  product  of  the  estate  arising  in  his  own 
time,  but  he  takes  that,  which  nature  has  been  elaborating  through 
ages,  being  a  part  of  the  inheritance  itself,  and  that,  too,  which  im- 
parts to  it  its  chief  value.  x\s  in  the  case  of  the  mine,  how  is  it 
possible  to  apportion  the  timber  "between  the  tenant  for  life  and  the 
remainder-man,  since  it  is  altogether  uncertain,  what  the  duration  of 
the  life  will  be?  If  a  tenant  for  hfe  can  claim  a  share  of  the  trees 
for  sale,  as  a  part  of  the  profits,  then  the  whole  might  be  taken  from 
the  owner  of  the  inheritance,  when  there  happens  to  be  a  succession 
of  life  estates  limited.  It  is  said,  however,  that,  unless  he  be  allowed  to 
take  some  of  the  timber,  his  estate  will  be  of  no  value,  when  the  land 
is  swamp,  not  fit  for  cultivation  or  that  cannot  be  made  so  without 
great  expense  in  drains  and  dikes.  That,  we  suppose,  could  not  alter* 
the  principle.  But  this  case  does  not  call  for  a  decisive  answer  to 
that  suggestion.  For,  in  the  first  place,  the  greater  part  of  the  sales 
have  been  of  shingles  and  staves  made  of  timber  felled  on  the  high 
land  on  one  of  the  tracts ;  and,  in  the  next  place,  one  half  of  one  of 
the  tracts  and  three  fifths  of  the  other  are  arable,  and,  consequently, 
the  timber  on  the  swamp  might  by  a  prudent  proprietor  be  preserved 
as  a  provision  that  would  enable  him  to  reduce  to  actual  cultivation  the 
whole  of  those  portions  of  the  land,  which  are  arable.  Certainly  a* 
tenant  for  life  cannot  insist  on  being  allowed  to  make  the  greatest 
possible  profit  out  of  the  land  that  can  be  made  in  his  time.  Indeed, 
he  ought  not,  for  the  sake  merely  of  enhancing  his  profits  and  with- 
out any  view  to  the  cultivation  of  any  parts  of  the  land,  to  cut  the 
timber  in  which  the  chief  value  of  the  fee  consists,  and  thus  leave  the 
exhausted  or  barren  parts  of  the  land,  which  are  arable  or  might  be 
made  so,  to  the  reversioner,  with  only  timber  enough  on  the  several 

bA  dowress,  tn  order  to  get  firewood  for  tbe  dower  house,  which  she  was 
occupying, "paid  a  person  for  cutting  and  drawing  the  wood  by  allowing  him 
to  take  an  equal  amount  for  his  own  benefit.  Held,  this  was  waste  as  to 
the  wood  so  allowed  to  be  taken  by  the  cutter  for  himself.  Johnson  v. 
Johnson,  IS  N.  H.  594  (1847).  See  Darcy  v.  Askwith,  Hob.  234  (1618); 
Padelford  v.  Padelford,  7  Pick.  (Mass.)  152  (182^. 

A  dowress  sold  to  a  third  person  the  right  to  occupy  the  dower  land  and 
to  cut  enough  wood'  for  one  tire,  it  being  known  at  the  time  of  tbe  sale 
that  the  purchaser  did  not  intend  to  occupy  the  house.  The  purchaser  did 
not  occupy  tbe  house ;  he  cut  in  a  prudent  manner  and  used  elsewhere  some- 
what less  wood  than  would  have  been  necessary  to  heat  the  dower  house. 
Held,  the  dowress  is  guilty  of  waste.  Fuller  v.  Wason,  7  N.  H.  341  (1S:J4) ; 
8ee  Cook  v.  Cook,  11  Gray  (Mass.)  123  (1S5S). 


Ch.  7)  WASTE  *  649 

tracts  to  fence  those  worthless  parts.     That  would  really  be  to  give 
to  the  particular  estate  the  kemell,  and  the  shell  to  the  fee. 
Per  Curiam.    Decree  affirmed  with  costs.' 


GAINES  et  air  v.  GREEN  POND  IRON  MINING  CO.  et  al. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1881.    33  N.  J.  Eq.  603.) 

Van  Syckel,  J.''  The  bill  in  this  cause  was  filed  by  the  complain- 
ants as  owners  of  the  remainder  in  fee  of  a  large  tract  of  wild  lands 
in  the  county  of  Morris,  to  restrain  the  defendants,  who,  it  is  alleged, 
have  only  a  life  estate  in  said  lands,  from  cutting  timber  and  working 
the  iron  mines  on  said  premises,  and  also  praying  for  an  account. 
*     *     * 

The  land  in  question  is  very  rough  and  mountainous,  and  almost 
all  of  it  unfit  for  cultivation.  On  it  there  is  a  thin  covering  of  wood 
and  timber,  with  a  large  deposit  of  valuable  iron  ore  underlying  it. 
About  the  year  1812,  Dr.  Graham,  then  owner  of  the  fee,  excavated' 
the  iron  ore  for  the  purpose  of  manufacturing  copperas,  sulphur  be- 
ing combined  with  it  in  such  proportions  as  made  it  available  for  that 
purpose.  He  made  at  least  two  openings,  from  ten  to  fifteen  feet 
deep,  out  of  which  the  ore  was  raised,  and  carried  on  this  business 
for  several  years.  There  was  erected  upon  the  premises  a  building 
used  for  pounding  the  ores,  and  other  apparatus  for  treating  them. 
There  was  no  digging  for  ore  from  the  time  Dr.  Graham  quit  working 
Cabout  1812  or  1814)  until  about  forty  years  ago,  when  a  small  quan- 
tity of  ore  was  taken  out  and  tested  at  two  different  forges  In  the 
neighborhood,  and  was  considered  to  be  without  value  as  iron  ore, 
on  account  of  the  sulphur  it  contained.  From  that  time  there  has 
been  no  mining  upon  these  premises  until  the  Green  Pond  Iron  Com- 
pany commenced  its  operations  in  1872. 

By  the  strict  rule  of  the  common  law,  the  opening  and  working  of  a 
mine  by  a  tenant  for  years,  not  opened  in  the  lifetime  of  the  previous 
tenant  in  fee,  was,  equally  with  the  cutting  of  timber,  an  undoubted 
waste  of  the  estate.    In  Hoby  v.  Hoby,  1  Vern.  218,  the  widow  was 


«Acc.:  Warren  County  v.  Gans,  80  Miss.  76,  31  South.  539  (1902);  Proffitt 
V.  Henderson,  29  Mo.  325  (1860) ;  Jackson  v.  Brownson,  7  Johns.  (N.  Y.)  227, 
5  Am.  Dec.  258  (1810). 

In  1882  the  plaintiff  county  leased  to  the  defendant  for  99  years  for  a  lump 
sum  of  $835  forty  acres  of  land  covered  with  limber  which  constituted  Its 
only  value,  the  land  being  unfit  for  cultivation.  The  defendant  began  to 
cut  the  timber;  the  plaintiff  sought  an  injunction.  Held,  on  a  rehearing, 
overruling  the  first  decision  in  the  case,  the  injunction  should  issue.  Moss 
Point  Lumber  Co.  v.  Harrison  County,  89  Miss.  448,  42  South.  290,  873  (1907). 

As  to  rights  in  trees  blown  down,  see  Bateman  v.  Hotchkin,  31  Beav.  4bU 
(1862),  post,  p.  687. 

7  Part  of  the  opinion  is  omitted. 


650  *      RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

held  to  be  dowable  of  a  coal  work.  It  was  resolved  in  Saunders'  Case, 
5  Coke,  12,  that  if  a  man  hath  land  in  part  of  which  there  is  a  coal 
mine  open,  and  he  leases  the  land  to  one  for  life,  or  for  years,  the 
lessee  may  dig  in  it,  for  inasmuch  as  the  mine  is  open  at  the  time,  and 
he  leases  all  the  land,  it  shall  be  intended  that  his  intent  is  as  general  ' 
as  his  lease." 

The  tenant  for  life,  subject  to  waste,  cannot  open  a  new  mine. 
Whitfield  V.  Beuitt,  2  P.  Wms.  242. 

And  if  a  lease  of  land  be  made,  and  some  mines  are  open  and  some 
not,  the  open  mines  only  can  be  wrought.    Astry  v.  Ballard,  2  Lev.  185. 

But  a  tenant  for  life  may  open  the  earth  in  new  places  in  pursuit  of 
an  old  vein  of  coals,  when  the  coal  mine  had  been  opened  before  he 
came  in  possession  of  the  estate.  Clavering  v.  Clavering,  2  P.  Wms. 
388.     *     *     * 

This  subject  was  carefully  considered  by  Lord  Romilly,  in  Bagot 
V.  Bagot,  32  Beav.  509,  where  he  says : 

"With  respect  to  the  abandoned,  or,  as  they  are  called  in  the  plead- 
ings and  evidence,  the  dormant  mines,  I  am  of  opinion  that  it  has 
not  been  shown  that  he  committed  waste  in  working  those  mines.  It 
is  always  a  question  of  degree  to  be  established  by  evidence,  whether 
the  working  of  a  mine  which  has  been  formerly  worked,  is  waste  or 
not.  There  is  no  doubt  that  a  tenant  for  life,  though  impeachable  for 
waste,  may  properly  work  an  open  mine.  A  mine  not  worked  for 
twelve  months,  or  two  years,  previously  to  the  tenant  for  life  com- 
ing into  possession,  must  still  be  considered  an  open  mine.  A  mine 
which  has  not  been  worked  for  one  hundred  years  cannot,  I  think,  be 
properly  so  treated.  My  present  opinion  is,  that  a  mine  which  had 
not  been  worked  for  twenty  or  thirty  years,  from  the  loss  of  profit 
attending  the  working,  might,  without  committing  waste,  be  worked 
again  by  a  succeeding  tenant  for  life.  But,  if  the  working  of  the  mine 
had  been  abandoned  by  the  owner  of  the  inheritance  many  years  pre- 
viously, with  a  view  to  some  advantage  which  he  considered  would 
accompany  such  discontinuance,  apart  from  the  profits  to  be  made 
from  the  sale  of  the  mineral,  I  doubt  whether  a  succeeding  tenant  for 
life  could  properly  treat  that  as  an  open  mine.." 

In  Elias  V.  Griffith,  L.  R.  4  App.  Cas.  465,  Lord  Selborne  says : 

"Upon  the  questions  of  law  which  were  argued  at  the  bar,  I  think 
it  unnecessary  to  make  more  than  two  remarks.  The  first  is,  that  I 
am  not  at  present  prepared  to  hold  that  there  can  be  no  such  thing  as 
an  open  mine  or  quarry,  which  a  tenant  for  life,  or  other  owner  of  an 
estate  impeachable  for  waste,  may  work,  unless  the  produce  of  such 
mine  or  quarry  has  been  previously  carried  to  market  and  sold.  No 
doubt  if  a  mine  or  quarry  has  been  worked  for  commercial  profit,  that 
must,  ordinarily,  be  decisive  of  the  right  to  continue  working;  and, 
on  the  other  hand,  if  minerals  have  been  worked  or  used  for  some 
definite  and  restricted  purpose  (e.  g.,  for  the  purpose  of  fuel  or  re- 
pair to  some  particular  tenements),  that  would  not  alone  give  any 


Ch.  7)  WASTE  651 

such  right.  But  if  there  has  been  a  working  and  use  of  minerals  not 
limited  to  any  special  or  restricted  purpose,  I  find  nothing  in  the  old- 
er authorities  to  justify  the  introduction  of  sale  as  a  necessary  cri- 
terion of  the  difference  between  a  mine  or  quarry  which  is,  and  one 
which  is  not,  to  be  considered  open  in  a  legal  sense.  None  of  the 
dicta  which  are  to  be  found  in  some  of  the  more  modern  cases  (each 
of  which  turned  upon  its  own  particular  circumstances)  can  have  been 
intended  to  introduce  a  condition  or  qualification  not  previously 
known,  into  the  law  of  mines. 

"The  other  observation  which  I  desire  to  make  is,  that  when  a  mine 
or  quarry  is  once  open,  so  that  the  owner  of  an  estate  impeachable  for 
waste  may  work  it,  I  do  not  consider  that  the  sinking  a  new  pit  on  the 
same  vein,  or  breaking  ground  in  a  new  place  on  the  same  rock,  is 
necessarily  the  opening  of  a  new  mine  or  quarry;  and  for  this,  au- 
thority is  to  be  found  in  the  cases  which  were  cited  at  the  bar,  of 
Clavering  v.  Clavering,  Bagot  v.  Bagot,  and  Lord  Cowley  v.  Welles- 
ley." 

In  Elias  v.  Griffith,  L.  R.  8  Ch.  Div.  521,  Lord  Cotton  remarked  that : 

"To  enable  a  termor,  or  tenant  for  life  punishable  for  waste,  to 
work  mines,  it  must  be  shown  that  the  owner  of  the  inheritance,  or 
those  acting  by  his  authority,  have  commenced  the  working  of  the 
mines  with  a  view  to  making  a  profit  from  the  working  and  sale  of 
what  is  part  of  the  inheritance.  When  this  is  established,  though 
no  profit  has  in  fact  been  made,  the  mine  is  open  in  such  a  sense  as 
to  justify  the  continuance  of  the  working  by  a  termor." 

The  case  of  Clavering  v.  Clavering,  2  P.  Wms.  388,  which  recog- 
nizes the  right  of  the  life  tenant  to  open  new  pits  or  shafts  for  the 
working  of  an  old  vein  of  coal,  has  never  been  overruled  in  the  Eng- 
lish courts. 

These  citations  show  that,  in  England,  the  life  tenant  has  a  right 
to  use  a  mine  for  his  own  profit,  where  the  owner  of  the  fee,  in  his 
lifetime  has  opened  it,  even  though  he  may  have  discontinued  working 
upon  it  for  a  long  period  of  years. 

The  rule  by  which  the  right  of  the  life  tenant  is  to  be  tested  is  not 
the  length  of  time  that  may  have  elapsed  smce  the  last  working  of 
the  mines,  but  it  depends  upon  whether  the  owner  of  the  fee  merely 
discontinued  the  work  for  want  of  capital,  or  because  it  did  not  prove 
profitable,  or  for  any  other  like  reason,  or  whether  he  abandoned  it 
with  an  executed  intention  to  devote  the  land  to   some  other  use. 

The  American  cases  have  modified  the  law  of  waste,  to  adapt  it  to 
the  circumstances  of  a  new  and  growing  country,  in  order  to  en- 
courage the  tenant  for  life  in  making  a  reasonable  use  of  wild  and  un- 
developed lands.  Hastings  v.  Crunckleton,  3  Yeates  (Pa.)  261 ;  Find- 
lay  V.  Smith,  6  Munf.  (Va.)  134,  8  Am.  Dec.  733 ;  Ballentine  v.  Poy- 
ner,  3  N.  C.  110;  Neel  v.  Neel,  19  Pa.  323;  Irwin  v.  Covode,  24  Pa. 
162. 


652  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

In  Neel  v.  Neel,  a  coal  mine  had  been  opened  ana  worked  for  family 
use,  and  for  the  benefit  of  the  neighbors,  but  a  very  inconsiderable 
quantity  had  been  taken  out.    In  that  case,  Judge  L,owrie  said : 

"It  seems,  in  this  case,  that  the  author  of  the  gift  had  sometimes 
sold  coal  out  of  the  pits,  but  I  do  not  conceive  this  to  be  material.  It 
is  sufficient  that  he  opened  them  and  derived  any  profit  from  them, 
even  if  it  were  only  private.  And  the  decisions  refer  to  coal  mines, 
iron  mines,  &c.,  and  the  tenant  for  life  may  work  them,  even  though 
the  working  of  them  may  have  been  discontinued  before  the  death  of 
him  through  whom  the  estate  comes,  and,  if  necessary  to  the  proper 
working  of  them,  to  make  hew  openings  in  the  ground." 

In  support  of  these  views  he  cites  the  English  and  American  cases, 
and  expresses  himself  without  reference  to  the  statute  of  1848. 

Chancellor  Kent  says : 

"The  American  doctrine  on  the  subject  of  waste  is  somewhat 
varied  from  the  English  law,  and  is  more  enlarged  and  better  accom- 
modated to  the  circumstances  of  a  new  and  growing  country."  4 
Comm.  76.  ' 

The  cases  referred  to  will  show  a  strong  inclination  to  amplify  the 
privileges  of  the  life  tenant. 

In  a  country  like  this,  where  there  are  such  vast  bodies  of  unim- 
proved lands,  which  would  otherwise  lie  dormant  in  the  hands  of  the 
life  tenant,  public  policy  requires  that  the  doctrine  of  waste  should 
be  liberalized,  and  the  decisions  have  uniformly  been  in  that  direction. 

The  present  case  illustrates  the  hardship  of  a  close  rule  in  favor 
of  the  fee.  The  life  estate  vested  in  1860,  and  there  is  an  expectancy 
of  twenty  years  more  of  this  life.  A  construction  of  the  law  which 
locks  up  the  land  from  all  beneficial  use  for  so  long  a  period,  and  gives 
the  life  owner  only  the  privilege  of  paying  the  land  tax,  should  not 
be  favored. 

When  the  property  is  unimproved  land,  not  adaptable  to  any  other 
beneficial  use  than  that  of  mining,  the  right  of  the  life  tenant  to  use 
at  reasonably  for  such  purpose,  has  some  support  in  the  adjudications 
in  this  countrj'-,  and  is  certainly  not  without  reason  to  uphold  it. 

To  maintain  the  right  of  the  appellant  in  this  case,  it  is  not  neces- 
sary to  broaden  the  rule  to  that  extent. 

The  openings  in  this  case  were  such  as,  under  the  English  cases, 
will  establish  the  right  in  the  life  estate  to  pursue  the  workings  upon 
the  veins  which  had  been  opened. 

It  is  sufficient  to  show  that  openings  were  made  and  ore  taken  out 
with  a  view  to  profit,  and  it  is  wholly  immaterial  whether  the  ore  was 
used  in  the  manufacture  of  copperas  or  for  some  other  commercial 
purpose. 

The  evidence  shows  a  mere  cessation  of  the  work,  not  such  an  aban- 
donment, in  the  legal  sense  of  that  term,  as  will  defeat  the  right  of 
the  life  tenant.  The  length  of  time  during  which  cessation  continued 
is  immaterial,  so  long  as  the  fact  of  abandonment  is  not  established. 


Ch.  7)  WASTE  653 

The  decree  of  the  chancellor,  so  far  as  it  denies  the  right  of  the 
appellants  to  work  the  veins  of  ore  upon  which  the  openings  had  been 
made  in  the  lifetime  of  the  owner  of  the  fee,  and  so  far  as  it  enjoins 
such  work,  should  be  reversed,  and  in  other  respects  affirmed. 

Decree  unanimously  reversed.® 


KLIE  et  al  v.  VON  BROOCK  et  al. 
(Court  of  Chancery  of  New  Jersey,  1897.     56  N.  J.  Eq.  18,  37  Atl.  469.) 

[The  complainants  owned  two  adjoining  and  connecting  buildings. 
They  occupied  the  first  floor  of  the  easterly  one  as  a  saloon.  The 
other  building  had  been  erected  by  the  complainants  for  the  purpose 
of  being  used  as  a  restaurant  by  the  defendant,  and  after  it  was  com- 
pleted it  was  leased  to  him  for  five  years  with  a  covenant  not  to  sell 
liquors  upon  the  premises.  The  defendant,  shortly  after  he  took  pos- 
session under  the  lease,  obtained  from  the  Hoboken  Land  Improvement 
Company  a  lease  of  a  building  adjoining  the  restaurant  building  on 
the  west  and  using  a  party  wall  in  common  with  the  restaurant  build- 
ing. The  defendant  intended  to  use  this  building  for  saloon  purposes 
in  conjunction  with  the  restaurant  and  obtained  from  the  Hoboken 
Company  permission  to  make  an  opening  in  the  party  wall  and  began 
so  to  do.  The  complainants  objected,  but  before  they  could  obtain  an 
injunction  the  defendant  completed  the  opening.  The  complainants 
now  file  this  bill,  setting  forth  the  above  facts  and  asking  for  an  injunc- 
tion compelling  the  defendant  to  restore  the  party  wall  to  its  former 
condition.] 

Pitney,  V.  C.®  *  *  *  There  remains  the  third  question,  name- 
ly, that  of  waste.  The  defendants  obtained  permission  from  the  Ho- 
boken Land  Improvement  Company  to  cut  the  doorway  through  the 
partition  wall,  but,  clearly,  that  company  could  not  give  them  the  right 
to  do  so  without  the  permission  of  the  complainants,  who  owned  one- 
half  of  the  wall.  And  the  result  is  the  same  whether  we  consider  that 
ownership  as  of  the  partiaular  one-half  which  was  on  their  side  of 
the  line,  or  as  the  undivided  one-half  of  the  whole.  The  question,  then, 
is  whether  or  not,  under  the  terms  of  the  lease,  the  defendants  acquir- 
ed such  a  right  in  the  premises  as  authorized  them  to  make  the  open- 
ing.   The  opening,  as  first  made,  was  between  four  and  five  feet  wide, 

8  See,  in  addition  to  the  cases  cited  in  the  opinion,  Owings  v.  Emery,  6 
Gill  (Md.)  260  (1847) ;  Billings  v.  Taylor,  10  Pick.  (Ma^s.)  460,  20  Am,  Dec, 
533  (1830);  Coates  v,  Cheever,  1  Cow,  (N.  Y.)  460   (1823). 

A.  was  tenant  for  life  of  land  under  which  there  were  large  beds  of  clay. 
A.  granted  to  B,  the  right  to  excavate  the  clay  therefrom  in  large  quantities, 
and  B.  began  so  to  do.  Held,  ths  remainderman  in  fee  may  enjoin  this 
»x'-avating.  University  v.  Tucker,  31  "W.  Va,  621,  8  S.  E,  410  (1888).  Ace: 
Isom  V.  Rex  Crude  Oil  Co.,  147  Cal.  659,  82  Pac,  317  (1905),  statute. 

See  Freer  v.  Stotenbur,  34  How.  Prac  (N.  Y.)  440  (1806). 

*  Part  of  the  opinion  is  omitted. 


654  RIGHTS   IN   THE   LAND   OF  ANOTHER  (Part  3 

and  seven  or  eight  feet  high.    The  bricks  and  mortar  were  actually  re- 
moved, and  these  composed  an  essential  part  of  the  building  itself. 

Now,  it  seems  to  me  too  plain  for  argument  that  such  an  abstraction 
amounted  to  waste  at  the  common  law.  It  was  a  "spoil"  and  "de- 
struction" pro  tanto  of  the  building.  2  Bouv.  Law  Diet.  tit.  "Waste" ; 
6  Jac.  Law  Diet.  tit.  "Waste,"  p.  393,  and  at  page  399,  where  the  au- 
thor uses  this  language,  citing  authorities :  "If  a  lessee  flings  down  a 
wall  between  a  parlor  and  a  chamber,  by  which  he  makes  a  parlor  more 
large,  it  is  waste.  It  cannot  be  intended  for  the  benefit  of  the  lessor, 
nor  is  it  in  the  power  of  the  lessee  to  transpose  a  house.  So,  if  he  pulls 
down  a  partition  between  chamber  and  chamber,  it  is  waste.  Or  if  a 
lessee  pulls  down  a  hall  or  parlor,  and  makes  a  stable  of  it,  it  is  waste. 
If  a  lessee  pulls  down  a  garret  overhead,  and  makes  it  all  in  one  and 
the  same  thing,  it  is  waste.  Breaking  of  a  wall  covered  with  thatch, 
and  of  a  pale  of  timber  covered,  is  waste."  To  the  same  effect  pre- 
cisely are  7  Bad  Abr.  tit.  "Waste,"  at  *256;  Tayl.  Landl.  &  Ten.  § 
348;  Kerr,  Inj.  *250,  *251,  where  the  author  says:  "An  alteration 
of  buildings  which  changes  their  nature  and  character  is  waste,  even 
although  the  value  of  the  premises  be  thereby  increased.  Thus  the  con- 
verting two  chambers  into  one,  or  e  converso,  or  the  converting  a 
hand  mill  into  a  horse  mill,  or  a  corn  mill  into  a  fulling  mill,  or  a  malt 
mill  to  a  corn  mill,  or  a  logwood  mill  to  a  cotton  mill  have  been  held  to 
be  waste.  So,  also,  the  conversion  of  a  private  house  into  a  shop  is 
waste.  So,  also,  may  the  building  of  a  new  house,  where  there  was  one 
before,  be  waste,  if  it  impair  the  evidence  of  title."     *     *     * 

In  my  judgment,  the  test  in  such  a  case  is  not  alone  whether  a  ma- 
terial injury  is  done  to  the  building,  but  whether  it  is  altered  in  a  ma- 
terial manner,  and  to  an  extent  beyond  what  is  fairly  implied  from  the 
terms  of  the  original  contract  of  letting.  It  is  said  by  the  treatise  writ- 
ers, and  authorities  are  cited  for  the  position,  that  the  severity  of  the  ' 
ancient  rule  of  waste  has  been  relaxed,  and  that  many  alterations  are 
now  held  not  waste  which  in  ancient  times  would  have  been  held  as 
waste.  I  have  examined  the  cases  which  are  said  to  illustrate  this  modi- 
fication, and  my  conclusion  is  tliat  in  most  of  them  a  permission  by  the 
owner  to  the  tenant  to  alter  and  change  the  building  is  either  found  in 
the  terms  of  the  demise,  or  is  to  be  impHed  from  the  circumstances  of 
the  case.  *  *  *  So  I  should  say  that  if  a  building  be  erected  and 
let  for  an  hotel,  and  through  oversight  or  miscalculation  some  mistake 
in  the  interior  arrangements  occurs,  which  materially  interferes  with 
its  beneficial  use  for  that  purpose,  and  requires  a  change,  it  is  probable 
that  the  right  to  make  such  a  change  could  properly  be  inferred  from 
the  circumstances.  An  illustration  is  found  in  this  case.  At  the  spe- 
cial request  of  the  tenants,  the  landlord  divided  the  basement  into  two 
parts  by  a  cross  wall  of  brick,  not  a  part  of  the  original  plan,  and  not 
necessary  for  the  support  of  the  building.  This  was  done  in  order  to 
keep  the  heat  of  the  range  in  the  kitchen  from  penetrating  to  the  front 
part  of  the  basement.    When  die  building  came  into  actual  use,  it  was 


Ch.  7)  WASTE  C55 

found  that  this  wall  was  an  injury,  rather  than  a  benefit,  and  was,  in 
whole  or  in  part,  removed  by  the  defendants.  They  assert  that  it  was 
done  with  the  consent  of  the  landlords,  but  the  landlords  deny  this. 
Be  that  as  it  may,  I  think  it  was  not  waste,  and  its  removal  was  not 
relied  upon  as  a  part  of  complainants'  case.     *     *     * 

These  considerations  lead  to  the  conclusion  that  the  case  is  not  cov- 
ered by  any  well-considered  authority  in  which  tenants  have  been  held 
justified  in  changes  of  this  character.^"     *     *     * 


MEbMS  et  al.  v.  PABST  BREWING  CO. 

(Siipreme  Court  of  Wisconsin,  1899.     104  Wis.  7,  79  N.  W.  73S,  46  L.  R.  A. 

478.) 

This  is  an  action  for  waste,  brought  by  reversioners  against  the  de- 
fendant, which  is  th'e  owner  of  an  estate  for  the  life  of  another  in  a 
quarter  of  an  acre  of  land  in  the  city  of  Milwaukee.  The  waste  claim- 
ed is  the  destruction  of  a  dwelling  house  upon  the  land,  and  the  grad- 
ing of  the  same  down  to  the  level  of  the  street.  The  complaint  de- 
mands double  damages,  under  section  3176,  Rev.  St.  1898^  The  quar- 
ter of  an  acre  of  land  in  question  is  situated  upon  Virginia  street,  in  the 
city  of  Milwaukee,  and  was  the  homestead  of  one  Charles  T.  Melms, 
deceased.  The  house  thereon  was  a  large  brick  building,  built  by 
Melms  in  the  year  1864,  and  cost  more  than  $20,000.  At  the  time  of  the 
building  of  the  house,  Melms  owned  the  adjoining  real  estate,  and  also 
owned  a  brewery  upon  a  part  of  the  premises.  Charles  T.  Melms  died 
in  the  year  1869,  leaving  his  estate  involved  in  financial  difficulties. 
After  his  decease,  both  the  brewery  and  the  homestead  were  sold  and 
conveyed  to  the  Pabst  Brewing  Company,  but  it  was  held  in  the  action 
of  Melms  v.  Brewing  Co.,  93  Wis.  140,  66  N.  W.  244,  that  the  brewing 
company  only  acquired  Mrs.  Melms'  life  estate  in  the  homestead,  and 
that  the  plaintiffs  in  this  action  were  the  owners  of  the  fee,  subject  to 
such  life  estate.  As  to  the  brewery  property,  it  was  held  in  an  action 
under  the  same  title,  decided  at  the  same  time,  and  reported  in  93  Wis. 
153,  66  N.  W.  518,  57  Am.  St.  Rep.  899,  that  the  brewing  company  ac- 
quired the  full  title  in  fee.  The  homestead  consists  of  a  piece  of  land 
90  feet  square,  in  the  center  of  which  the  aforesaid  dwelling  house 
stood;  and  this  parcel  is  connected  with  Virginia  street  on  the  south 
by  a  strip  45  feet  wide  and  60  feet  long,  making  an  exact  quarter  of 
an  acre. 

It  clearly  appears  by  the  evidence  that  after  the  purchase  of  this  land 
by  the  brewing  company  the  general  character  of  real  estate  upon  Vir- 
ginia street  about  the  homestead  rapidly  changed,  so  that  soon  after 

10  For  the  final  decree  in  tliis  case,  see  post,  p.  681. 

Ace:  Davenport  v.  Magoon,  13  Or.  3,  4  Tac.  299,  57  Am.  Rep.  1  (1884). 
See  Agate  v.  Lowenbein,  57  N.  Y.  604  (1874). 


656  RIGHTS  IN  THE   LAND  OF  ANOTHER  (Part  2 

the  year  1890  it  became  wholly  undesirable  and  unprofitable  as  resi- 
dence property.  Factories  and  railway  tracks  increased  in  the  vicinity, 
and  the  balance  of  the  property  was  built  up  with  brewing  buildings, 
until  the  quarter  of  an  acre  homestead  in  question  became  an  isolated 
lot  and  building,  standing  from  20  to  30  feet  above  the  level  of  the 
street,  the  balance  of  the  property  having  been  graded  down  in  order 
to  fit  it  for  business  purposes.  The  evidence  shows  without  material 
dispute  that,  owing  to  these  circumstances,  the  residence,  which  was  at 
one  time  a  handsome  and  desirable  one,  became  of  no  practical  value, 
and  would  not  rent  for  enough  to  pay  taxes  and  insurance  thereon; 
whereas,  if  the  property  were  cut  down  to  the  level  of  the  street,  so  that 
it  was  capable  of  being  used  as  business  property,  it  would  again  be 
useful,  and  its  value  would  be  largely  enhanced.  Under  these  circum- 
stances, and  prior  to  the  judgment  in  the  former  action,  the  defendant 
removed  the  building,  and  graded  down  the  property  to  about  the 
level  of  the  street,  and  these  are  the  acts  which  it  is  claimed  constitute 
waste. 

The  action  was  tried  before  the  court  without  a  jury,  and  the  court 
found,  in  addition  to  the  facts  above  stated,  that  the  removal  of  the 
building  and  grading  down  of  the  earth  was  done  by  the  defendant  in 
1891  and  1892,  believing  itself  to  be  the  owner  in  fee  simple  of  the 
property,  and  that  by  said  acts  the  estate  of  the  plaintiffs  in  the  prop- 
erty was  substantially  increased,  and  that  the  plaintiffs  have  been  in  no 
way  injured  thereby.  Upon  these  findings  the  complaint  was  dismiss- 
ed, and  the  plaintiffs  appeal. 

WiNSLOW,  J.^^  Our  statutes  recognize  waste,  and  provide  a  remedy 
by  action,  and  the  recovery  of  double  damages  therefor  (Rev.  St.  1898, 
§  3170  et  seq.);  but  they  do  not  define  it.  It  may  be  either  voluntary 
or  permissive,  and  may  be  of  houses,  gardens,  orchards,  lands,  or  woods 
(Id.  §  3171) ;  but,  in  order  to  ascertain  whether  a  given  act  constitutes 
waste  or  not,  recourse  must  be  had  to  the  common  law  as  expounded  by 
the  text-books  and  decisions.  In  the  present  case  a  large  dwelling 
house,  expensive  when  constructed,  has  been  destroyed,  and  the  ground 
has  been  graded  down,  by  the  owner  of  the  life  estate,  in  order  to  make 
the  property  serve  business  purposes.  That  these  acts  would  consti- 
tute waste  under  ordinary  circumstances  cannot  be  doubted.     *     *     * 

This  element  will  be  found  in  all  the  definitions  of  waste,  namely, 
that  it  must  be  an  act  resulting  in  permanent  injury  to  the  inheritance 
or  future  estate.  It  has  been  frequently  said  that  this  injury  may  con- 
sist either  in  diminishing  the  value  of  the  inheritance,  or  increasing  its 
burdens,  or  in  destroying  the  identity  of  the  property,  or  impairing 
the  evidence  of  title.  The  last  element  of  injury  so  enumerated,  while 
a  cogent  and  persuasive  one  in  former  times,  has  lost  most,  if  not  all, 
of  its  force,  at  the  present  tirne.  It  was  important  when  titles  were  not 
registered,  and  descriptions  of  land  were  frequently  dependent  upon 

11  Part  of  the  opinion  is  omitted. 


Ch.  7)  WASTE  657 

natural  monuments,  or  the  uses  to  which  the  land  was  put;  but  since 
the  universal  adoption  of  accurate  surveys,  and  the  establisliment  of 
the  system  of  recording  conveyances,  there  can  be  few  aqts  which  will 
impair  any  evidence  of  title.  Doherty  V:  AUman,  supra  [3  App.  Cas. 
709]  ;   Bewes,  Waste,  pp.  129,  130,  et  seq. 

But  the  principle  that  the  reversioner  or  remainder-man  is  ordinarily 
entitled  to  receive  the  identical  estate,  or,  in  other  words,  that  the 
identity  of  the  property  is  not  to  be  destroyed,  still  remains,  and  it 
has  been  said  that  changes  in  the  nature  of  buildings,  though  enhanc- 
ing the  value  of  the  property,  will  constitute  waste  if  they  change  the 
identity  of  the  estate.  Brock  v.  Dole,  supra  [66  Wis.  142,  28  N.  W. 
334].  This  principle  was  enforced  in  the  last-named  case,  wttere  it 
was  held  that  a  tenant  from  year  to  year  of  a  room  in  a  frame  building 
would  be  enjoined  from  constructing  a  chimney  in  the  building  against 
the  objection  of  his  landlord.  The  importance  of  this  rule  to  the  land- 
lord or  owner  of  the  future  estate  cannot  be  denied.  Especially  is  it 
valuable  and  essential  to  the  protection  of  a  landlord  who  rents  his 
premises  for  a  short  time.  He  has  fitted  his  premises  for  certain  uses. 
He  leases  them  for  such  uses,  and  he  is  entitled  to  receive  them  back 
at  the  end  of  the  term  still  fitted  for  those  uses ;  and  he  may  well  say 
that  he  does  not  choose  to  have  a  different  property  returned  to  him 
from  that  which  he  leased,  even  if,  upon  the  taking  of  testimony,  it 
might  be  found  of  greater  value  by  reason  of  the  change.  Many  cases 
Avill  be  found  sustaining  this  rule ;  and  that  it  is  a  wholesome  rule  of 
law,  operating  to  prevent  lawless  acts  on  the  part  of  tenants,  cannot  be 
doubted,  nor  is  it  intended  to  depart  therefrom  in  this  decision.  The 
case  now  before  us,  however,  bears  little  likeness  to  such  a  case,  and 
contains  elements  so  radically  different  from  those  present  in  Brock  v. 
Dole  that  we  cannot  regard  that  case  as  controlHng  this  one. 

There  are  no  contract  relations  in  the  present  case.  The  defendants 
are  the  grantees  of  a  life  estate,  and  their  rights  may  continue  for  a 
number  of  years.  The  evidence  shows  that  the  property  became  value- 
less for  the  purpose  of  residence  property  as  the  result  of  the  growth 
and  development  of  a  great  city,  business  and  manufacturing  inter- 
ests advanced  and  surrounded  the  once  elegant  mansion,  until  it  stood 
isolated  and  alone,  standing  upon  just  enough  ground  to  support  it,  and 
surrounded  by  factories  and  railway  tracks,  absolutely  undesirable  as 
a  residence,  and  incapable  of  any  use  as  business  property.  Here  was 
a  complete  change  of  conditions,  not  produced  by  the  tenant,  but  result- 
ing from  causes  which  none  could  control.  Can  it  be  reasonably  or 
logically  said  that  this  entire  change  of  condition  is  to  be  completely  ig- 
nored, and  the  ironclad  rule  applied  that  the  tenant  can  make  no  change 
in  the  uses  of  the  property  because  he  will  destroy  its  identity  ?  Must 
the  tenant  stand  by,  and  preserve  the  useless  dwelling  house,  so  that 
he  may  at  some  future  time  turn  it  over  to  the  reversioner,  equally  use- 
less? Certainly,  all  the  analogies  are  to  the  contrar}'.  *  *  * 
Big. Rights — 42 


658  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

Suppose  an  orchard  to  have  become  permanently  unproductive 
through  disease  or  death  of  the  trees,  and  the  land  to  have  become  far 
more  valuable,  by  reason  of  new  conditions,  as  a  vegetable  garden  or 
wheat  field,  is  the  Hfe  tenant  -to  be  compelled  to,preserve  or  renew  the 
useless  orchard,  and  forego  the  advantages  to  be  derived  from  a  dif- 
ferent use  ?  Or  suppose  a  farm  to  have  become  absolutely  unprofitable 
by  reason  of  change  of  market  conditions  as  a  grain  farm,  but  very 
valuable  as  a  tobacco  plantation,  would  it  be  waste  for  the  life  tenant 
to  change  the  use  accordingly,  and  remodel  a  now  useless  barn  or  gran- 
ary into  a  tobacco  shed?  All  these  questions  naturally  suggest  their 
own  answer,  and  it  is  certainly  difficult  to  see  why,  if  change  of  condi- 
tions i%  so  potent  in  the  case  of  timber,  orchards,  or  kind  of  crops,  it 
should  be  of  no  effect  in  the  case  of  buildings  similarly  affected.  *  *  * 

In  the  absence  of  any  contract,  express  or  implied,  to  use  the  proper- 
ty for  a  specified  purpose,  or  to  return  it  in  the  same  condition  in  which 
it  was  received,  a  radical  and  permanent  change  of  surrounding  condi- 
tions, such  as  is  presented  in  the  case  before  us,  must  always  be  an 
important,  and  sometimes  a  controlling,  consideration  upon  the  question 
whether  a  physical  change  in  the  use  of  the  buildings  constitutes  waste. 
In  the  present  case  this  consideration  was  regarded  by  the  trial  court 
as  controHing,  and  we  are  satisfied  that  this  is  the  right  view.  This 
case  is  not  to  be  construed  as  justifying  a  tenant  in  making  substantial 
changes  in  the  leasehold  property,  or  the  buildings  thereon,  to  suit  his 
own  whim  or  convenience,  because,  perchance,  he  may  be  able  to  show 
that  the  change  is  in  some  degree  beneficial.  Under  all  ordinary  cir- 
cumstances the  landlord  or  reversioner,  even  in  the  absence  of  any  con- 
tract, is  entitled  to  receive  the  property  at  the  close  of  the  tenancy 
substantially  in  the  condition  in  which  it  was  when  the  tenant  received 
it;  but  when,  as  here,  there  has  occurred  a  complete  and  permanent 
change  of  surrounding  conditions,  which  has  deprived  the  property 
of  its  value  and  usefulness  as  previously  used,  the  question  whether  a 
life  tenant,  not  bound  by  contract  to  restore  the  property  in  the  same 
condition  in  which  he  received  it,  has  been  guilty  of  waste  in  making 
changes  necessary  to  make  the  property  useful,  is  a  question  of  fact 
for  the  jury  under  proper  instructions,  or  for  the  court,  where,  as  in 
the  present  case,  the  question  is  tried  by  the  court. 

Judgment  affirmed.^^ 

12 A.,  a  widow,  to  whom  the  homestead,  an  adobe  house,  had  been  set  off 
for  life,  began  to  tear  it  down  for  the  purpose  of  replacing  it  with  a  bet- 
ter building.  Held,  since  it  appears  that  the  present  building  has  some 
value,  A.  may  be  enjoined  by  the  remainderman  from  tearing  it  down.  Dooly 
V.  Stringham,  4  Utah,  107,  7  Pac.  405  (1S85).  Compare  Crowe  v.  Wilson,  65 
Md.  479,  5  Atl.  427.  57  Am.  Rep.  343   (1886). 


Ch.  7)  WASTE  659 

COUNTESS  OF  SALOP  v.  CROMPTON. 

(Court   of   Queen's   Bench,    1599.     Cro.    Eliz.   777,   784.) 

Action  on  the  case.  Whereas  the  plaintiff,  20th  February,  34  Eliz. 
let  to  the^  defendant  a  house,  a  stable,  and  three  barns  in  Shirland,  ha- 
bendum to  him  at  will ;  and  the  defendant"  entered  •accordingly ;  and 
afterward,  20th  January,  36  Eliz.  being  so  possessed,  tarn  negHgenter 
et  improvide  kept  his  fire  in  the  said  house,  that  through-  default  of 
good  keeping  thereof,  the  said  house,  stable,  and  barns  were  burnt 
down,  to  her  damage,  &c. 

The  defendant  pleaded  not  guilty;  and  after  verdict  it  was  moved 
in  arrest  of  judgment,  that  this  action  lies  not  against  a  tenant  at  will, 
who  burns  the  houses  by  negligence:  for  against  a  tenant  for  life  or 
years,  or  other  particular  tenant  who  comes  in  by  demise  of  the  party, 
an  action  lies  not  for  waste  at  the  common  law.  By  the  statute,  an 
action  is  given  against  tenant  for  life  or  years,  but  tenant  at  will  re- 
mains as  at  the  common  law ;  and  there  is  not  any  remedy  against  him 
for  voluntary  or  negligent  waste.  On  the  other  part  it  was  said,  that  al- 
though waste  lies  not  for  a  negligent  or  permissive  waste  (for  it  is  not 
given  by  any  statute,  because  the  estate  of  tenant  for  will  is  uncer- 
tain, and  by  reason  of  the  uncertainty  he  is  not  bound  to  repair  it),  yet 
for  a  voluntary  negligence  which  destroys  the  thing  demised,  or  for  a 
voluntary  negligence  whereby  the  thing  demised  is  lost,  an  action  well 
lies;  as  Lit.  fol.  15,  is,  that  trespass  lies  where  tenant  at  will  cuts  down 
the  trees;  as  it  lies  against  a  shepherd  who  destroys  the  sheep  com- 
mitted to  him.  So  12  Edw.  4,  pi.  18,  if  a  bailiff  of  goods  waste  them, 
action  upon  the  case  lies ;  and  14  Hen.  8,  and  48  Edw.  3,  pi.  25.  Brook, 
"Action  sur  le  case,"  25,  and  Mich.  3  Hen.  8,  Roll.  655,  The  Earl  of 
Oxford  V.  Marning,  an  action  on  the  case  was  brought,  supposing  that 
the  plaintiff  was  tenant  for  life,  reversion  to  the  King  in  fee ;  and  the 
defendant  was  tenant  at  will  to  the  plaintiff,  and  cut  down  sixty  oaks, 
and  carried  them  away,  by  reason  whereof  the  King  recovered  the 
place  wasted,  and  treble  damages  against  the  now  plaintiff;  but  no 
judgment  can  be  found  therein.  Another  precedent  was  cited.  Mich. 
22  Hen.  7,  Roll.  320,  Cricost  v.  Nichols,  where  tenant  for  years  made 
a  lease  of  parcel  thereof  for  a  less  term  of  years  to  the  defendant ; 
an  action  upon  the  case  was  brought  against  the  defendant,  for  negli- 
gently burning  his  house :  but  there  is  not  any  judgment  to  be  found 
therein.    Wherefore,  &c. 

But  all  the  Court  held  in  this  case,  that  for  the  negligent  burning,  this 
nor  any  other  action  lies ;  for  he  comes  in  by  the  act  of  the  party, 
and  it  was  his  folly  that  he  did  not  provide  for  his  remedy. 

But  Popham  and  Fenner  agreed,  that  if  lessee  at  will  cuts  down 
trees,  an  action  of  trespass  well  lies,  because  he  voluntarily  destroyed 
the  thing  demised :   so  where  a  shepherd  kills  the  sheep.    But  for  this 


G60  RIGHTS  IN  THE   LAND   OF  ANOTHER  (Part  2 

negligent  keeping  of  his  fire,  whereby  his  house  was  burned,  no  action 
lies.  .  Wherefore  it  was  adjudged  for  the  defendant. 

This  case  was  now  moved  again,  and  all  the  justices  resolved,  that 
the  action  lay  not  for  this  negligent  waste. 

But  Gawdy  allowed  that  if  tenant  at  will  burnt,  or  pulled  down  the 
houses  voluntarily,  that  trespass  lay,  because  the  privity  of  the  lease  is 
determined  by  this  act  done,  which  his  estate  permits  not ;  which  is  the 
reason  of  the  case  in  2  &  3  Ph.  &  Mary,  121,  and  15  Edw.  4,  pi.  20, 
and  2  Hen.  7,  pi.  11,  that  if  a  bailiff  destroys  the  thing  delivered,  tres- 
pass lies;  and  where  a  shepherd  will  not  keep  his  sheep,  but  suffers 
them  to  be  drowned,  action  upon  the  case  lies,  because  he  there  took 
upon  him  the  charge.  But  here  he  takes  not  any  charge  upon  him,  but 
to  occupy,  and  pay  his  rent;  and  none  will  affirm,  if  a  lessee  at  will 
suffers  his  house  to  fall  down,  that  an  action  should  lie  against  him ; 
for  he  is  not  bound  to  repair  it. 

To  this  difference  of  voluntary  and  permissive  waste,  Popham, 
Clench,  and  Fenner,  agreed.  And  Popham  said,  there  was  difference 
betwixt  an  interest  and  an  authority :  for  if  a  man  hath  an  authority 
to  do  a  thing  in  general,  action  of  trespass  lies ;  but  where  a  man  hath  an 
interest  during  that  time,  his  misfeasance  shall  not  be  punished  by  a 
general  writ  of  trespass.  But  as  it  hath  been  said,  if  a  tenant  at  will 
cuts  down  the  trees,  or  pulls  down  the  houses,  a  general  action  of  tres- 
pass lies;  for  thereby  his  interest  is  determined,  and  he  is  become  a 
stranger,  for  that  he  voluntarily  had  done  such  an  act,  which  could  not 
be  done  by  his  interest,  and  determines  the  will.  Wherefore  judgment 
was  given  accordingly." 

isAcc:     Panton   v.   Isham,   3   Lev.    359    (1702);    Lothrop   v.   Thayer,   138 

Mass.  466,  52  Am.  Rep.  286  (18S5).  In  this  latter  case,  Field,  J.,  said  (138 
Mass,  474,  52  Am.  Rep.  292):  "The  law  of  negligence  has  been  largely  de- 
veloped in  recent  times,  and  it  is  argued  that  there  is  no  sound  reason  why 
it  should  not  be  applied  in  the  same  manner  to  real  property  as  to  personal, 
and  to  tenancies  at  will  as  well  as  to  tenancies  lor  a  term.  It  may  well  he 
doubted  whether  the  existing  condition  of  the  law  of  negligence  is  alto- 
gether satisfactory,  and  whether  it  would  be  wise  to  establish  an  unlimited 
liability  to  his  landlord,  on  the  part  of  every  tenant  at  will  of  real  property, 
for  every  injury  occasioned  by  any  act  of  negligence  of  himself  or  his  ser\'- 
ants,  in  the  use  of  the  property.  However  this  may  be,  we  do  not  feel  at 
liberty  to  overturn  long-established  rules  of  law  governing  real  property. 
We  are  not  in  this  case  required  to  consider  the  consequences  of  the  neg- 
ligent setting  or  guarding  of  fires,  set  for  other  purposes  than  such  as  are 
necessary  to  render  the  tenement  fit  for  occupation,  and  in  other  places 
than  those  constructed  or  intended  for  the  use  of  fires  in  heating  the  prem- 
ises let.  It  is  competent  for  landlords  and  tenants  to  make  in  writing  any 
stipulations  they  see  fit.  When  there  is  no  writing,  and  the  tenant  takes 
the  precarious  estate  of  a  tenancy  at  will,  we  think  it  has  been  generally 
understood  that  the  tenant  is  not  liable  for  the  burning  of  the  tenement 
let,  occasioned  by  his  negligence  or  that  of  his  servants  in  the  keeping  of 
fires  set  for  the  purpose  of  heating  the  premises,  and  in  the  places  designed 
for  that  purpose,  so  that  they  may  be  fit  for  occupation.  The  fact  that  no 
action  can  be  foijnd  to  have  been  maintained  for  this  cause  is  strong  evi- 
dence of  this.    The  ancient  law  has  been  acquiesced  in,  and,  consciously  or 


Ch.  7)  WASTE  661 

In  re  CART  WRIGHT. 

AVIS  V.  NEWMAN. 

(Chancery  Division,  1SS9.     L.  R.  41  Cli.   D.  532.) 

Adjourned  summons. 

John  Cartwright,  who  died  in  1850,  by  his  will,  dated  in  that  year, 
devised  land  in  the  county  of  Suffolk  unto  and  to  the  use  of  his  daugh- 
ter Mary  Anne  Cartwright  and  her  assigns  for  and  during  the  term 
of  her  natural  life,  and  from  and  immediately  after  her  decease  to 
the  use  of  her  children,  if  any,  in  manner  therein  mentioned,  and  if 
all  such  children  should  have  departed  this  life  without  issue  at  the 
time  of  the  decease  of  his  daughter  and  on  failure  of  her  issue,  he  de- 
vised the  land  to  the  defendant  Newman,  his  heirs  and  assigns  for 
ever.  The  will  contained  no  provisions  touching  the  liability  of  the  tes- 
tator's daughter  for  waste. 

Mary  Anne  Cartwright  died  a  spinster  on  the  15th  of  December, 
1888,  and  the  plaintiff  Avis  was  her  executor.  At  the  time  of  her 
death  the  buildings,  gates,  and  fences  on  the  devised  land  were  in  a 
dilapidated  condition  owing  to  the  necessary  repairs  not  having  been 
done,  and  the  probable  cost  of  the  works  necessary  to  place  the  prop- 
erty in  repair  was  estimated  by  a  surveyor  to  be  il66.  12s.  9d.  The 
defendant  claimed  this  sum  from  the  plaintiff,  who,  on  the  28th  of 
March,  1889,  took  out  an  originating  summons  to  have  it  determined 
whether  any  and  what  sum  should  be  allowed  and  paid  to  the  defend- 
ant as  compensation  in  respect  of  waste  suffered  by  Mary  Anne 
Cartwright  during  her  estate  in  the  premises. 

Kay.  J,  (without  calling  upon  counsel  for  the  plaintiff).  I  am  much 
obliged  to  you,  Mr.  Druce,  for  your  argument,  to  which  I  have  listen- 
ed with  very  considerable  interest.  The  result  appears  to  be  this : 
Sir  Tames  Mansfield  was  clearly  of  opinion  that  an  action  for  per- 
missive waste  would  not  lie  even  against  a  tenant  for  years.  That  is 
clearly  shewn  in  the  case  of  Gibson  v.  Wells,  1  B.  &  P.  N.  R.  290, 
Avhich  was  followed  at  later  dates  in  Heme  v.  Bembow,  4  Taunt.  764, 
and  Jones  v.  Hill,  7  Ibid.  392,  and  in  the  recent  case  of  Barnes  v.  Dowl- 
ing  in  the  Law  Times  Reports ;  and  when  the  point  was  brought  be- 
fore the  Lord  Chancellor  (Lord  Cranworth)  in  the  case  of  Powys  v. 
Blagrave,  his  Lordship,  4  D.  M.  &  G.  458,  said  this:  "Then  it  was 
argued,  independently  of  the  trust,  that  it  is  the  duty  of  a  tenant  for 
life  to  repair — 'Equitas  sequitur  legem.'  But  even  legal  liability  now 
is  very  doubtful."  And  he  referred  to  Gibson  v.  Wells,  1  B.  &  P.  N. 
R.  290,  and  Heme  v.  Bembow,  4  Taunt.  764.    His  Lordship  there  de- 

unconsciously,   the  cost  of  insurance  to  the   landlord,  or  the   value  of  the 
risk,  enters  into  the  amount  of  the  rent." 

Compare  Wainscott  v.  Silvers,  13  Ind.  497  (18i39) ;  Coale  v.  Hannibal  & 
St.  J.  R.  Co.,  60  Mo.  227   (1875). 


662  RIGHTS   IN  THE  LAND   OF  ANOTHER  (Part  2 

cided  most  certainly  that  in  equity  no  interference  whatever  would 
be  made  on  the  ground  of  permissive  waste  by  a  tenant  for  life.  Now, 
in  that  state  of  the  authorities,  this  consideration  is  to  be  added.  Since 
the  Statutes  of  Marlbridge  and  of  Gloucester  there  must  have  been 
hundreds  of  thousands  of  tenants  for  life  who  have  died  leaving  their 
estates  in  a  condition  of  great  dilapidation.  Not  once,  so  far  as  legal 
records  go,  have  damages  been  recovered  against  the  estate  of  a 
tenant  for  life  on  that  ground.  To  ask  me  in  that  state  of  the  au- 
thorities to  hold  that  a  tenant  for  life  is  liable  for  permissive  waste  to 
a  remainderman  is  to  my  mind  a  proposition  altogether  startling.  I 
should  not  think  of  coming  to  such  a  decision  without  direct  authority 
upon  the  point.  Such  authority  as  there  is  seems  to  me  to  be  against 
the  contention,  and  in  opposition  to  the  positive  decisions  in  Gibson  v. 
Wells,  Heme  v.  Bembow,  and  Jones  v.  Hill,  7  Taunt.  392,  there  are 
only  to  be  found  certain  dicta  of  Baron  Parke  and  the  late  Lord  Jus- 
tice Lush  which  seem  to  amount  to  this,  that  the  words  of  the  stat- 
utes of  Marlbridge  and  Gloucester  are  sufficient  to  include  the  case 
of  permissive  waste,  at  any  rate  where  there  is  an  obligation  on  the 
person  who  has  the  particular  estate  not  to  permit  waste,  whether  that 
obligation  does  or  does  not  exist  at  the  common  law  in  the  case  of  a 
tenant  for  life.  But  at  the  present  day  it  would  certainly  require  ei- 
ther an  Act  of  Parliament  or  a  very  deliberate  decision  of  a  Court  of 
great  authority  to  establish  the  law  that  a  tenant  for  life  is  liable  to 
a  remainderman  in  case  he  should  have  permitted  the  buildings  on  the 
land  to  fall  into  a  state  of  dilapidation.  I  therefore  think  that 
■this  claim  must  be  disallowed,^* 


MORRIS  V.  CAIRNCROSS. 

(Common  Pleas  Division  of  the  High  Court  of  Justice  of  Ontario,  1907.     14 

Ont.  L.  R.  544.) 

This  was  an  action  for  a  declaration  that  a  certain  lease  was  void, 
and  not  binding  on  the  plaintiffs,  and  for  other  relief. 

The  plaintiffs  were  the  grandchildren  and  heirs-at-law  of  Mary 
Gallagher,  who  died  in  1870,  having  first  made  her  will  whereby  she 
devised  certain  lands  situate  at  the  corner  of  Church  and  Ann  streets, 
in  the  city  of  Toronto,  then  owned  by  her  in  fee  simple,  amongst  oth- 
er lands,  to  her  son  Robert  Atkinson  Gallagher  for  life;  and  appointed 
William  Mulock  and  John  Oliver  her  executors. 

i«Acc.:  In  re  Parry,  [1900]  1  Ch.  IGO;  Patterson  v.  Central  Canada  Loan 
&  Savings  Co.,  29  Ont.  134    (1S9S),  action  at  law. 

"A  tenant  for  life  is  required  to  keep  the  buildings  in  which  he  may  have 
a  life  estate  from  going  to  decay,  by  using  ordinary  care;  but  he  is  not 
required  to  expend  any  extraordinary  suras."  Eastman,  J.,  in  Wilson  v. 
Edmonds,  24  N.  H.  517,  545.(1852).  See  Sherrill  v.  Connor,  107  N.  C.  G30, 
12  S.  E.  588  (1890). 


Ch.  7)  WASTE  663 

In  accordance  with  the  terms  of  the  will,  R.  A.  Gallagher  entered 
into  possession  of  the  lands;  and  on  the  1st  October,  1895,  John 
Oliver  and  R.  A.  Gallagher  assumed  to  make  a  lease  of  the  lands  to 
the  defendant  for  the  term  of  twenty-one  years,  at  an  annual  rental 
of  $120  who  went  into  and  continued  in,  possession  of  the  same.  On 
February  6th,  1905,  R.  A.  Gallagher  died. 

The  plaintiffs  contended  that  on  his  death  they  became  entitled  to  an 
estate  in  fee  simple  in  the  lands,  and  that  John  Oliver  and  R.  A.  Gal- 
lagher had  therefore  no  power  to  make  a  lease  of  the  lands  for  a 
longer  term  than  the  life  of  R.  A.  Gallagher.  That  the  Settled  Es- 
tates Act,  58  Vict.  ch.  20,  sec.  42  (O.),  did  not  apply,  as  the  lease 
was  not  made  in  conformity  with  that  Act,  in  that  it  was  not  an  or- 
dinary lease  as  contemplated  by  that  Act,  but  was  in  effect  a  building 
lease,  and  was  made  without  impeachment  of  waste,  and  that  the  rent 
reserved  by  the  lease  was  not  the  best  rent  that  could  have  been 
reasonably  obtained  therefor,  but  was  an  inadequate  and  insufficient 
rental,  and  that  even  if  the  lease  were  made  in  conformity  with  the 
provisions  of  the  Settled  Estates  Act,  it  was  not  binding  upon  or  good 
as  against  the  plaintiffs. 

The  plaintiff's  proved  that,  on  the  death  of  the  life  tenant,  R.  A. 
Gallagher,  they  had  repudiated  the  lease,  and  had  demanded  posses- 
sion from  the  defendant,  but  that  he  neglected  and  refused  to  deliver 
up  the  possession,  claiming  that  the  lease  to  him  was  a  valid  lease. 

The  plaintiffs  asked  for  a  declaration  that  the  lease  was  void,  and 
not  binding  upon  them,  and  also  to  have  it  declared  that  the  defendant 
had  excluded  them  from  the  possession,  and  to  have  such  possession 
delivered  over  to  them,  and  claiming  mesne  profits  or  damages,  and 
costs. 

The  action  was  tried  before  Boyd,  C.,  at  the  non-jury  sittings  at 
Toronto,  on  May  15,  1906. 

Boyd,  C.^^  In  leases  for  years  under  the  Settled  Estates  Act,  1895, 
58  Vict.  ch.  20,  sec.  42  (O),  it  is  essential  that  they  be  not  made  "with- 
out impeachment  of  waste."  In  other  words,  the  terms  of  the  lease 
must  be  such  as  not  to  affect  or  vary  the  common  law  liability  of  the 
lessee  for  waste.  The  tenant  must  not  be  relieved  from  any  duty  the 
omission  of  which  would  constitute  waste.     *     *     * 

[The  Chancellor  dismissed  the  action  and  the  plaintiffs  appealed.] 

Meredith,  C.  J.  [after  considering  certain  objections  of  the  plain- 
tiff's to  the  lease].  The  other  ground  of  objection  on  this  branch  of 
the  case — that  the  demise  is  without  impeachment  of  waste — is  based 
upon  the  proposition  that  the  covenants  to  repair  and  to  repair  accord- 
ing to  notice  are  qualified  by  the  exceptions  in  the  covenant  to  leave 
the  premises  in  good  repair,  namely,  "reasonable  wear  and  tear  and 
damage  by  fire  or  tempest,"  and  that,  being  so  qualified  the  effect  of 
them  is  that  the  lessee  is  freed  from  liability  for  waste,  for  which,  as 

16  Parts  of  the  opinions  of  Boyd,  C,  and  Meredith,  C.  J.,  are  omitted. 


G64  RIGHTS   IN  THE   LAND  OF  ANOTHER  (Part  2 

was  contended,  both  voluntary  and  permissive,  a  tenant  for  years  is 
answerable.     *     *    * 
There  remain  to  be  considered  two  questions: 

(1)  Whether  a  tenant  for  years  is  answerable  for  permissive  waste; 

(2)  If  answerable,  whether  the  terms  of  the  lease  are  such  as  to 
relieve  the  respondent  from,  any  liability  which  otherwise  he  would  be 
under  for  permissive  waste.     *    *     * 

I  would  have  been  justified  in  resting  my  decision  as  to  the  exist- 
ence of  the  liability  upon  Yellowly  v.  Gower,  11  Exch.  274,  had  it 
not  been  that  it  was  argued  that  the  authority  of  that  case  had  been 
shaken,  if  not  destroyed,  by  subsequent  decisions  and  by  the  eflfect  of 
the  Judicature  Act,  and  that  if  I  had  come  to  that  conclusion  it  would 
still  be  necessary  to  ascertain  what  are  the  nature  and  extent  of  the 
liability  of  a  tenant  for  years  for  the  state  and  condition  of  the  de- 
mised premises. 

Yellowly  v.  Gower  was  decided  in  1855  by  the  Court  of  Exchequer 
the  judgment  of  the  Court  being  delivered  by  Baron  Parke,  and  was 
supposed,  as  the  text  writers  say,  to  have  "stifled  the  doubt"  that  had 
before  existed  as  to  the  liability  of  a  tenant  for  years  for  permissive 
waste. 

This  doubt,  as  Baron  Parke  points'  out,  was  raised  by  three  cases  in 
the  Common  Pleas :  Gibson  v.  Wells  (1805)  1  Bos.  &  P.  N.  R.  290 ; 
Heme  v.  Bembow  (1813)  4  Taunt.  764;  and  Jones  v. 'Hill  (1817)  7 
Taunt.  392 ;  and  as  to  them  he  said,  at  p.  292 :  "Upon  examining 
these  cases,  none  of  which  appears  to  be  well  reported,  the  Court  seems 
to  have  contemplated  the  case  only  of  a  tenant  at  will  in  the  two  first 
cases,  and  in  the  last  no  such  proposition  is  stated  that  a  tenant  for 
years  is  not  liable  for  permissive  waste." 

The  opinion  of  the  Court  was  stated  in  no  uncertain  terms  (at  p. 
292) :  "We  conceive  that  there  is  no  doubt  of  the  liability  of  ten- 
ants for  terms  of  years,  for  they  are  clearly  put  on  the  same  foot- 
ing as  tenants  for  life,  both  as  to  voluntary  and  permissive 
waste.    *     *     * " 

The  declaration  in  Heme  v.  Bembow  was  in  case  in  the  nature  of 
waste,  and  it  would  seem  that  the  decision  turned  upon  the  form  of 
the  action,  for  the  Court  is  reported  to  have  said  (at  p.  765) :  "What- 
ever duties  the  law  casts  on  the  tenant,  the  law  will  raise  an  assumpsit 
from  him  to  perform  (if  there  be  no  covenant  in  his  lease  for  the 
performance),  but  that  is  a  very  diflferent  case  from  a  declaration 
framed  in  tort  like  this."    *     ♦    * 

The  learned  Chancellor  declined  to  follow  Yellowly  v.  Gower  and 
Davies  v.  Davies,  38  Ch.  D.  499.  He  had  already,  in  Patterson  v.  The 
Central  Canada  Loan  and  Savings  Co.,  29  O.  R.  134,  adopting  the 
view  of  Kay,  J.,  in  In  re  Cartwright,  Avis  v.  Newman,  41  Ch.  D.  532, 
determined  that  a  tenant  for  life  was  not  impeachable  for  permissive 
waste,  and  that  determination  logically  required  the  same  holding  as 


Ch.  7)  WASTE  GGo 

to  a  tenant  for  years,  for  tenants  for  years  are  by  the  statutes  put 
on  the  same  footing  as  tenants  for  Hfe. 

I  am,  with  great  respect,  of  opinion  that  even  if  In  re  Cartwright  was 
well  decided,  we  ought  to  follow  Yellowly  v.  Gower,  followed  as  it 
was  by  Kekewich,  J.,  in  Davies  v.  Davies,  unless  the  Judicature  Act 
makes  it  necessary  to  follow  the  rule  in  equity  which  undoubtedly  was 
not  to  interpose  its  aid  in  the  case  of  permissive  waste. 

This  rule  of  equity  was  not  based  upon  any  different  view  as  to  the 
legal  liability  from  that  entertained  by  Courts  of  common  law,  and 
I  do  not  find  anywhere  any  clear  statement  of  the  reason  for  its 
adoption. 

The  rule  is  referred  to  in  Lord  Castleniain  v.  Lord  Craven  (1733) 
22  Vin.  Abr.  523,  by  the  Master  of  the  Rolls,  who  said  that  "as  to 
repairs,  the  Court  never  interposes  in  case  of  permissive  waste,  either 
to  prohibit  or  give  satisfaction,  as  it  does  in  case  oi  wilful 
waste."    *     *     * 

The  rule  probably  had  its  origin  in  the  difficulty  which  Courts  of 
equity  found  in  enforcing  by  their  process  the  performance  of  the 
tenant's  duty,  and  in  the  absence  of  jurisdiction  to  give  relief  by  man- 
datory injunction,  that  jurisdiction  being  strictly  confined  to  cases 
where  the  remedy  by  damages  was  inadequate  for  the  purposes  of 
justice,  and  the  restoring  of  things  to  their  former  condition  was  the 
only  remedy  which  would  meet  the  requirements  of  the  case.  Kerr 
on  Injunctions  (4th  Ed.)  p.  3L     *     *     * 

The  most  that  can  be  said  as  to  the  course  of  Courts  of  equity  in 
regard  to  claims  for  permissive  waste  is  that  they  did  not  actively  in- 
terfere where  the  estates  were  legal,  but  left  the  claimant  to  his  rem- 
edy at  law,  and  that  they  did  not  interfere  where  the  estates  were 
equitable,  and  I  see  in  this  course  nothing  that  involves,  any  conflict 
or  variance  between  the  rules  of  equity  and  the  rules  of  common  law^ 
as  to  the  remedy  by  a  legal  remainderman  for  permissive  waste  by  a 
legal  tenant  for  life  or  for  years.    *    *    * 

If  the  question  were  as  to  the  liability  of  a  tenant  for  life,  we  would 
be  bound  by  Patterson  v.  The  Central  Canada  L.  &  S.  Co.,  to  hold 
that  such  a  tenant  is  not  liable.  The  effect  of  that  decision  and  of  my 
conclusion  in  this  case  leads  to  the  illogical  result,  so  far  as  a  decision 
of  a  Divisional  Court  can  be  said  to  settle  the  law,  that  though  by 
the  statutes  both  classes  of  tenants  are  put  on  the  same  footing  as  to 
waste,  tenants  for  years  are  liable  for  permissive  waste,  but  tenants 
for  life  are  not;  and  were  it  not  for  that  consideration,  I  should  have 
refrained  from  adding  anything  further  on  this  branch  of  the  case. 

Apart  from  Barnes  v.  Dowling,  44  L.  T.  N.  S.  809,  the  only  English 
case  supporting  the  view  of  the  Divisional  Court  in  Patterson  v.  The 
Central  Canada  L.  &  S.  Co.,  is  In  re  Cartwright,  Avis  v,  Newman, 
41  Ch.  D.  532.     *     *     * 

The  main  ground  of  IVLr.  Justice  Kay's  decision  is  stated  on  p.  536 : 
"Since  the  Statutes  of  Marlbridge  and  of  Gloucester  there  must  have 


GG6  RIGHTS   IN   THE   LAND   OF  ANOTHER  (Part  2 

been  hundreds  of  thousands  of  tenants  for  hfe  who  have  died  leaving 
their  estate  in  a  condition  of  great  dilapidation.  Not  once,  so  far  as 
legal  records  go,  have  damages  been  recovered  against  the  estate  of 
a  tenant  for  life  on  that  ground.  To  ask  me  in  that  state  of  the  au- 
thorities to  hold  that  a  tenant  for  life  is  liable  for  permissive  waste 
to  a  remainderman  is  to  my  mind  a  proposition  altogether  startling. 
I  should  not  think  of  coming  to  such  a  decision  without  direct  author- 
ity upon  the  point." 

For  an  able  criticism  of  this  judgment,  I  refer  again  to  the  article  on 
"Permissive  Waste  in  the  Solicitors'  Journal  [vol.  33,  p.  743],  and  to 
Mr.  Labatt's  article  in  the  Canada  Law  Journal,  vol.  Z7 ,  p.  535  et  seq. 

Text  writers  and  others  have  suggested  reasons  for  the  absence  of 
adjudged  cases  since  the  time  of  Charles  I.  In  the  notes  on  In  re 
Cartwright,  in  the  Law  Quarterly  Review,  vol.  5,-  at  p.  449,  it  is  sug- 
gested that  this  may  be  explained  by  the  rule  "actio  personaHs,"  and 
Air.  Smith,  in  his  Lectures  on  the  Law  of  Landlord  and  Tenant  (2d 
Ed.)  p.  266,  speaking  of  tenants  for  years,  says  that  the  reason  of 
the  "paucity  of  information  is,  that  in  practice  a  case  rarely,  if  ever, 
occurs  in  which  it  is  necessary  to  inquire  what  the  general  law  is  on 
"the  subject;  for  every  lease  of  any  importance  contains  stipulations 
upon  tlie  subject  of  repairs,  and  where  those  are  inserted  they  super- 
sede the  lav/,  as  it  would  stand  without  them ;  and  of  course,  there- 
fore, the  question  of  what  that  law  is,  in  the  absence  of  express  stip- 
ulations, rarely  if  ever  occurs." 

These  reasons  appear  to  me  to  afford  a  satisfactory  explanation  of 
the  absence  of  decided  cases  as  to  both  tenants  for -life  and  tenants 
for  years. 

That  down  to  the  time  of  Charles  I  cases  did  occur  in  which  the 
question  arose  is  beyond  question,  and  there  is  abundant  authority  in 
the  earher  cases  to  support  the  statement  of  Lord  Coke  that  the  stat- 
utes applied  to  permissive  as  well  as  to  voluntary  waste. 

The  early  cases  are  referred  to  and  commented  upon  by  Mr.  Bewes 
at  pp.  211-216  of  his  book,  and  the  principle  he  deduces  from  them 
is  that  "a  tenant  is  not  in  general  responsible  for  permissive  waste 
where  not  followed  by  actual,  substantial  damage  to  the  premises." 
P.  213. 

It  appears  to  me,  however,  that  the  cases  establish  that  as  far  as 
liability  of  tenants  for  life  and  for  years  for  waste  is  concerned,  there 
is  no  difference  between  permissive  and  voluntary  waste,  and  that  the 
questions  which  have  arisen  were  not  as  to  the  existence  of  the  lia- 
bility but  as  to  what  acts  or  omissions  of  the  tenant  constitute  waste, 
and  that  the  result  of  the  cases  is  that  the  tenant  is  not  liable  for  mere 
wear  and  tear,  but  that  he  is  liable  for  his  failure  to  make  such  re- 
pairs as  are  necessary  to  prevent  the  decay  or  destruction  of  the  prem- 
ises as  where,  a  small  breach  is  made  in  the  roof  of  a  building  by 
tempest  and  the  tenant  permits  it  to  remain  unrepaired,  and  the  roof 
is  afterwards  blown  off  or  the  house  blown  down  for  want  of  repair- 


Ch.  7)  WASTE  667 

ing  the  breach,  6  Ehz.,  Moore,  p.  62,  case  173;  or  where  the  tenant 
neglects  to  paint  or  plaster  a  chamber  of  the  house,  which  results  in 
the  timbers  of  the  house  becoming  putrid,  Corbet  v.  Stonehouse,  9 
Car.,  2  Rolle  Abr.  816-7;  or  neglects  to  scour  a  ditch,  which  results 
in  the  groundsels  of  the  house  becoming  putrified,  Sticklehorne  v. 
Hatchman,  28  Eliz.  Owen,  p.  43.    *    *    * 

An  independent  inquiry  into  the  question,  fortified  by  the  result  of 
this  examination  of  the  principal  cases,  in  England,  Ireland  and  the 
United  States,  and  of  the  opinions  of  text  writers  and  commentators, 
leads  me  to  the  conclusion  that  Yellowly  v.  Gower  was  rightly  decided, 
and  that  its  authority  has  not  been  impugned  or  affected  by  any  sub- 
sequent case,  or  displaced  by  the  provisions  of  the  Judicature  Act,  and 
I  may  point  out  that  the  Commissioners  by  whom  the  Laws  of  England 
introduced  into  this  Province  by  the  Constitutional  Act  of  1792,  32 
Geo.  Ill,  ch.  1,  were  revised  and  consolidated^  must  have  reached 
the  same  conclusion  as  that  to  which  I  have  come,  for  as  revised  the 
Statute  of  Marlbridge  reads:  "Lessees  making  or  suffering  waste 
on  the  demised  premises  without  license  of  the  lessors  shall  be  liable 
for  the  full  damage  so  sustained."  R.  S.  O.  1897,  ch.  330,  sec.  23 ; 
Ibid.  ch.  342,  sec.  22. 

There  remains  to  be  considered  the  question  whether  the  modifica- 
tions of  the  covenants  in  the  lease  to  which  I  have  referred  have  the 
effect  of  relieving  the  respondent  from  any  liability  which  but  for  them 
he  would  have  been  subject  to  for  permissive  waste;  and  I  am  of 
opinion  that  they  do  not.     *     *     * 

The  result  is  that  in  my  opinion  the  appeal  fails  and  should  be  dis- 
missed with  costs. ^* 


CHALMERS  et  al.  v.  SMITH  et  al. 

(Supreme  Judicial  Court  of  Massachusetts,  1891.     152  Mass.  5G1,  26  N.  E. 

95,  11  L.  R.  A.  769.) 

Tort,  with  a  count  in  contract,  to  recover  for  loss  by  the  fall  of  a 
barn  in  South  Hadley.    The  declaration  was  as  follows : 

"Count  in  tort.  And  the  plaintiffs  say  the  defendants  became  and 
were  tenants  to  the  plaintiffs  of  a  certain  barn  and  premises  of  the 
plaintiffs,  situated  in  said  South  Hadley,  which  said  defendants  hired 
for  the  storage  of  hay,  and  when  so  occupying  and  using  said  barn 
and  premises  as  such  tenants  they  wrongfully  and  unlawfully,  and 
without  the  license  and  against  the  will  of  the  said  plaintiffs,  stored 
and  filled  the  barn  floors,  passageways,  and  stables  of  said  barn  with 
meal,  grain,  and  fertilizers,  all  of  which  were  quite  weighty,  and 
having  also  filled  the  remaining  space  in  the  barn  with  hay  and  grain, 

18  See  Hatch  v.  Stamper,  42  Conn.  28  (1S75);  Libbey  v.  Toltord,  48  i^Ie. 
316,  77  Am.  Dec.  229  (1861) ;  Moore  v.  Townshend,  SP,  N.  J.  Law,  285  {1SC9) ; 
Windon  v.  Stewart,  43  W.  Va.  711,  28  S.  E.  776  (1S97).  ' 


668  RIGHTS   IN   THE   LAND   OF  ANOTHER  (Part  2 

SO  that  the  entire  space  in  the  barn  was  filled  or  nearly  filled  with 
material  and  substance  much  too  weighty,  and  said  barn  not  having 
been  constructed  or  calculated  to  sustain  such  a  quantity  of  heavy 
grain,  and  substances  as  the  defendants  placed  therein;  and  said 
defendants  so  overloaded  said  barn  as  aforesaid  that  the  floor  gave 
way.  The  timbers,  braces,  and  supports  of  said  bam  were  drawn  out 
of  place  and  broken.  The  scaffold  and  roof  were  broken  down,  and 
the  entire  building  badly  damaged  by  reason  of  the  enormous  weight 
so  wrongfully  and  unjustly  and  improperly  placed  therein  by  said 
defendants.  By  means  of  which  damage  said  plaintiffs  have  lost  and 
will  lose  the  use  and  rental  of  said  barn,  and  have  been  and  will  be 
put  to  great  loss  and  expense  to  repair  the  same. 

"Count  in  contract.  And  the  plaintiffs  say  that  the  defendants 
became  and  were  tenants  to  the  plaintiffs  of  a  certain  barn  and  prem- 
ises of  the  plaintiffs  situated  in  said  South  Hadley,  which  they  hired 
for  the  storage  of  hay,  upon  the  terms  that  the  defendants  should 
during  the  said  tenancy  use  the  said  barn  and  premises  in  a  tenant- 
like and  proper  manner,  and  the  defendants  during  the  said  tenancy 
used  the  said  barn  and  premises  in  an  untenant-like  and  improper  man- 
ner, filling  the  stable  and  barn  floors  with  a  large  quantity  of  grain, 
meal  and  fertilizers,  in  addition  to  the  large  quantity  of  hay  and 
grain  stored  by  said  defendants  in  other  parts  of  the  barn,  so  that 
said  barn  was  overloaded,  and  the  floors  and  scaffolds  and  roof  broke 
down,  the  timbers  and  supports  were  broken,  and  the  barn  badly  dam- 
aged, by  reason  of  which  the  plaintiffs  have  lost  and  will  lose  the 
rental  of  the  same,  and  will  be  put  to  great  expense  to  repair  the  same. 

"The  count  in  contract  is  joined  with  the  count  in  tort,  being  deemed 
doubtful  to  which  of  these  classes  the  above  cause  of  action  belongs, 
and  both  being  for  one  and  the  same  cause  of  action." 

Trial  in  the  Superior  Court,  before  Barker,  J.,  who,  after  a  verdict 
for  the  plaintiffs,  reported  the  case  for  the  determination  of  this  court, 
in  substance  as  follows. 

The  plaintiffs  purchased  the  land  on  which  the  barn  mentioned  in 
the  declaration  stood  on  July  19,  1887.  The  defendants,  as  copart- 
ners, occupied  the  barn  under  an  oral  lease  from  the  former  owners 
at  the  time  of  the  purchase,  and  continued  in  occupation  under  that 
lease  until  its  term  expired,  July  1,  1888.  In  June,  1888,  the  defend- 
ants, by  an  oral  bargain,  hired  the  barn  of  the  plaintiffs  for  another 
year  from  July  1,  1888,  at  a  rent  of  seventy-five  dollars.  On  the 
morning  of  July  31,  1888,  the  barn  fell,  its  floors  settling  and  many  of 
its  beams  being  broken.  The  plaintiffs- contended  and  offered  evi- 
dence tending  to  show  that  the  barn  fell  from  overloading,  and  that 
the  weight  put  into  it  by  the  defendants  was  excessive,  and  improperly 
distributed.  But  the  defendants  denied  this,  and  contended  and  offered 
evidence  tending  to  show  that  the  accident  was  caused  by  the  de- 
fective construction  of  the  barn.  It  also  appeared  in  evidence,  that  the 
defendants  remained  in  occupation  of  the  barn  until  July  1,  1889,  and 


Ch.  7)  WASTE  669 

that  they  had  paid  the  rent  for  the  full  term  before  this  action  was 
brought. 

When  the  plaintiffs  rested  their  case,  the  defendants  moved  for  a 
verdict,  on  the  ground  that  the  action  could  not  be  inaintained  upon 
the  pleadings  and  evidence,  but  the  judge  overruled  the  motion;  and 
the  defendants  excepted. 

The  judge  submitted  the  case  to  the  jury  upon  instructions,  to  Avhich 
no  exception  was  taken,  which  allowed  them  to  find  for  the  plaintiffs, 
if  they  found  in  fact  that  the  fall  of  the  barn  was  caused  by  an  ap- 
parently unreasonable  use  of  it  by  the  defendants. 

If  the  case  was  properly  submitted  to  the  jury,  judgment  was  to 
be  entered  for  the  plaintiffs;  otherwise,  such  disposition  of  the  case 
was  to  be  made  as  might  be  proper. 

Knowlton,  J.  The  jury  have  found  that  the  defendants  unrea- 
sonably used  the  plaintiff's  barn  by  putting  into  it  a  weight  which 
was  apparently  and  in  fact  excessive.  This  was  something  more  than 
a  mere  omission,  which  would  constitute  permissive  waste.  It  was  a 
positive  unreasonable  act,  of  a  kind  likely  to  cause  injury  to  the  plain- 
tiflF's  property.  Such  an  act  which  results  in  damage  is  voluntary  waste 
on  the  part  of  a  tenant  who  is  guilty  of  it.  A  tenant  at-  will  who  com- 
mits voluntary  waste  is  liable  to  his  landlord  in  an  action  of  trespass 
quare  clausum.  His  act  terminates  his  right  as  a  tenant,  and  entitles 
the  landlord  to  treat  him  as  a  trespasser  in  doing  it.  Starr  v.  Jack- 
son, 11  Mass.  519;  Lienow  v.  Ritchie,  8  Pick.  235;  Daniels  v.  Pond, 
21  Pick.  367,  32  Am.  Dec.  269;  Lothrop  v.  Thayer,  138  Mass.  473, 
52  Am.  Rep.  286.  A  tenant  at  will,  as  well  as  a  tenant  for  life  or 
for  years,  is  under  an  implied  agreement  to  use  the  premises  in  a 
tenant-like  manner,  and  not  by  his  voluntary  act  unnecessarily  to 
injure  them.  While  this  agreement  does  not  include  an  obligation 
on  the  part  of  a  tenant  at  will  to  repair  defects  resulting  from  the 
action  of  the  elements,  or  from  a  reasonable  use  of  the  premises,  or 
from  an  unavoidable  accident,  it  creates  a  liability  in  an  action  on 
contract  for  a  wrongful  act  in  violation  of  it.  1  Add.  Cont.  (8th  Ed.) 
383;  Holford  v.  Dunnett,  7  Mees.  &  W.  348;  United  States  v.  Bost- 
wick,  94  U.  S.  53,  66,  24  L.  Ed.  65. 

The  acceptance  of  rent  by  the  plaintiff  for  the  full  term  was  not 
necessarily  a  waiver  of  their  right  to  recover  damages  for  a  breach 
of  this  contract.  It  was  merely  evidence  for  the  consideration  of  the 
jury  upon  the  question  whether  there  was  a  waiver.  A  liability  in 
damages  for  an  act  of  this  kind  may  well  be  enforced  in  an  action 
of  contract,  notwithstanding  that  the  rent  has  ,been  fully  paid.  Upon 
the  facts  which  the  jury  must  have  found  the  action  can  be  main- 
tained on  the  second  count,  and  the  ruling  of  the  presiding  justice 
was  therefore  correct.  Whether  the  plaintiffs  waived  their  right  to 
maintain  an  action  of  trespass  quare  clausum,  by  permitting  the  de- 
fendants to  be  in  possession  of  the  premises  and  accepting  rent  for 
a  long  time  after  the  building  fell,  or  whether  the  defects  in  pleading 


670  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

in  the  first  count,  treating  it  as  a  count  in  trespass,  could  be  taken 
advantage  of  by  the  defendants'  request  for  a  ruling  at  the  close  of 
the  evidence,  it  is  unnecessary  to  decide. 
Judgment  for  the  plaintiffs. ^^ 


EARLE  V.  ARBOGAST  et  al. 
(Supreme  Court  of  Pennsylvania,  1897.     ISO  Pa.  409,  36  Atl.  923.) 

Trespass  by  lessor  to  recover  damages  from  lessees  for  injuries  to 
buildings  while  in  their  possession  under  the  lease.     Before  Albright, 

P.J. 

At  the  trial  it  appeared  that  the  premises  in  question  had  been  leased 
by  the  plaintiff  to  the  defendants  by  parol  for  one  year,  with  no  agree- 
ment to  repair  or  to  deliver  the  premises  in  good  order  and  condition 
at  the  end  of  the  term.  The  property  had  been  used  by  the  lessor 
as  a  soap  factory,  and  this  use  was  continued  by  the  defendants.  The 
only  new  appliance  which  the  defendants  used  was  a  rendering  tank, 
which  exploded  and  caused  the  injuries  for  which  suit  was  brought. 
It  was  claimed  by  the  plaintiff  that  the  explosion  was  caused  by  the 
vent  pipe  of  the  tank  becoming  clogged.  It  was  also  averred  by  him 
that  the  tank  was  not  strong  enough  to  withstand  the  pressure  of 
steam  that  was  put  upon  it. 

Verdict  and  judgment  for  defendants.     Plaintiff  appealed. 

Fe;ll,  J.^^  Generally,  in  the  absence  of  an  express  covenant  on  the 
subject,  the  law  implies  a  covenant  on  the  part  of  the  lessee  so  to 
treat  the  demised  premises  that  they  may  revert  to  the  lessor  unim- 
paired, except  by  usual  wear  and  tear,  and  uninjured  by  any  will- 
ful or  negligent  act  of  the  lessee.  The  imphed  covenant  does  not, 
however,  extend  to  the  loss  of  buildings  by  fire,  flood,  or  tempest,  or 
enemies,  which  it  was  not  in  the  power  of  the  lessee  to  prevent,  and 
there  is  no  implied  covenant  that  the  lessee  shall  restore  buildings 
which  have  been  destroyed  by  accident  without  fault  on  his  part. 
Jack.  &  G.  Eandl.  &  Ten.  §§  964,  965 ;  Tayl.  Landl.  &  Ten.  §  343 ; 
Cooley,  Torts,  p.  335;  Long. v.  Fitzimmons,  1  Watts  &  S.  530;  Unit- 
ed States  v.  Bostwick,  94  U.  S.  53,  24  L.  Ed.  65. 

Tenants  by  the  curtesy  and  in  dower  were  responsible  at  common 
law,  and  tenants  for  life  and  for  years  whose  estates  were  created  by 
the  acts  of  the  parties  were  responsible  under  statute  as  for  permissive 
waste  until  relieved  by  the  statute  of  6  Anne,  c.  31,  where  the  prop- 
erty was  destroyed  by  'unavoidable  accident,  not  the  act  of  God  or 
the  public  enemy.  The  statute  of  6  Anne,  c.  31,  which  saved  the  ten- 
ant from  liability  for  the  consequences  of  accidental  fires,  has  never 
been  in  force  in  this  state,  and  it  has  been  formally  adopted  by  few, 

17  Compare  Horsefall  v.  Mather,  Holt's  N.  P.  7  (1815). 
^8The  statempnt  of  facts  Is  abridsod. 


Ch.  7)     .  WASTE  671 

if  any,  of  the  other  states  except  New  Jersey.  Chancellor  Kent  (4 
Kent,  Comm.  82)  says:  "Perhaps  the  universal  silence  of  our  courts 
upon  the  siibject  of  any  such  responsibility  of  the  tenant  for  acci- 
dental fires  is  presumptive  evidence  that  the  doctrine  of  permissive 
waste  has  never  been  introduced  and  carried  to  that  extent  in  the 
common-law  jurisprudence  of  the  United  States."  In  United  States 
V;  Bostwick,  supra,  it  was  held  that  the  implied  covenant  of  the  ten- 
ant is  not  to  repair  generally,  but  so  to  use  the  property  as  to  make 
repairs  unnecessary  as  far  as  possible,  and  that  it  is  a  covenant  against 
voluntary  waste  only.  It  is  said  in  the  opinion  by  Waite,  C.  J. :  "It 
has  never  been  so  construed  as  to  make  a  tenant  answerable  for  ac- 
cidental damages,  nor  to  bind  him  to  rebuild  if  the  buildings  are  burn- 
ed down,  or  otherwise  destroyed  by  accident." 

The  statement  in  the  opinion  in  Long  v.  Fitzimmons,  supra,  that 
a  tenant,  where  there  is  no  covenant  to  that  effect,  is  not  bound  to 
restore  buildings  that  have  been  burned  down,  or  become  ruinous 
by  other  accident,  without  default  on  his  part,  may  be  a  dictum  only, 
but  it  is  in  harmony  with  the  trend  of  decisions  of  the  courts  of  other 
states  and  of  the  federal  courts,  and  it  has  been  accepted  and  acted 
upon  by  the  courts  of  this  state,  and  it  is  a  correct  statement  of  the 
law.  There  could  be  no  recovery  without  proof  of  the  defendant's 
negligence,  and  the  burden  of  proof  rested  upon  the  plaintiff.  The 
lease  was  in  parol,  for  one  3'ear,  with  no  agreement  to  repair  or  to  de- 
liver the  premises  in  good  order  and  condition  at  the  end  of  the  term. 
No  new  or  different  use  was  made  of  the  building  by  the  tenants. 
It  was  used  by  them  for  the  purpose  for  which  it  had  been  leased, 
and  for  which  it  had  been  fitted  with  machinery,  and  used  by  the  les- 
sor. The  only  new  appliance  used  was  the  rendering  tank  which 
exploded.  In  the  use  of  the  property  leased  the  defendants  were 
under  an  implied  duty  not  to  negligently  injure 'it.  The  standard  of 
their  duty  was  reasonable  care. 

The  mere  fact  of  the  explosion  did  not  throw  upon  them  the  bur- 
den of  proving  that  they  were  not  negligent.  The  burden  of  proof 
was  with  the  plaintiff  throughout  the  trial.  He  was  not  bound,  in 
the  first  instance,  to  prove  more  than  enough  to  raise  a  presumption 
of  negligence  on  the  part  of  the  defendants.  Proof  of  the  explosion 
and  of  the  attendant  circumstances  might  have  furnished  sufficient 
ground  for  a  reasonable  inference  of  negligence  to  have  made  out  a 
prima  facie  case;  but  he  could  not  rest  his  case  upon  a  bare  presump- 
tion, based  only  upon  the  fact  that  the  explosion  occurred.  The  an- 
swers to  the  third,  fourth,  and  fifth  points  affirmed  these  propositions, 
and  are  free  from  error. 

The  assignments  which  complain  of  the  charge  cannot  be  sustained. 
An  inadequate  presentation  of  the  case,  when  the  omission  to  charge 
leaves  the  jury  without  direction  on  important  questions  involved, 
or  plainly  tends  to  mislead  them,  is  ground  for  reversal.  In  this 
case  the  charge  was  clear  and  full.    The  omission  now  complained  of 


672  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

was  in  not  calling  the  attention  of  the  jury  to  some  features  of  the 
case  which  counsel  at  the  time  did  not  deem  of  sufficient  importance 
to  mention,  and  which  may  have  been  discovered  only*  by  a  critical 
analysis  of  the  charge  made  since  the  trial. 
The  judgment  is  affirmed.^® 


ROGERS  V.  ATLANTIC,  G.  &  P.  CO. 

(Court  of  Appeals  of  New  York,  1915.  213  N.  Y.  246,  107  N.  E.  661,  L.  R.  A. 
1916A,  787,  Ann.  Cas.  1916C,  877.) 

Miller,  J.^"  The  plaintiff,  a  life  tenant,  has  recovered  a  judg- 
ment for  all  of  the  damages,  both  to  the  life  estate  and  to  the  in- 
heritance, caused  by  a  fire  set  by  the  defendant,  a  canal  contractor,  on 
adjoining   lands   of  the   estate,   and   negligently  allowed   to   spread 

19  See,  as  to  the  liability  of  a  tenant  for  years  for  loss  by  fire,  Dorr  v. 
Harkness,  49  N.  J.  Law,  571,  10  Atl.  400,  60  Am.  Rep.  656  (1887) ;  Moore  v. 
Parker,  91  N.  C.  275  (1884). 

As  to  the  liability  of  a  tenant  under  a  covenant  to  return  the  premises  in 
good  condition  where  they  have  been  destroyed  by  fire,  compare  Is'ave  v. 
Berrv,  22  Ala.  382  (1853) ;  Levey  v.  Dyess,  51  Miss.  501  (1875) ;  Maggort  v. 
Hansbarger,  8  Leigh  (Va.)  532  (1837);  Armstrong  v.  Maybee,  17  Wash.  24, 
48  Pac.  737,  61  Am.  St.  Rep.  898  (1897). 

Plaintiff  leased  premises  to  the  defendants,  an  express  company,  for  a 
term  of  years.  The  premises  were  damaged  by  the  explosion  thereon  of  a 
pack.ige  of  nitroglycerine  received  by  the  defendants  without  knowledge  of 
its  contents,  which  exploded  without  the  fault  of  the  defendants.  FlaintifC 
brought  action  against  the  defendants  to  recover  for  the  damage  so  caused. 
The  court,  by  Sawyer,  J.,  said:  "As  to  the  waste 'on  the  premises  demised 
to  the  defendants,  I  adopt  the  views  expressed  by  the  district  judge,  in  his 
opinion  on  the  demurrer,  and  I  need  not  repeat  the  reasoning  here.  [Case 
No.  10,773a  (1S6S).]  Whether  the  waste  complained  of  is  technically  permis- 
sive, or  commissive,  I  think  it  falls  within  the  provisions  of  the  statute.  And 
on  the  facts  found,  I  think  the  defendants  liable,  although,  as  will  hereafter 
appear,  there  was,  in  my  judgment,  no  negligence  on  their  part.  There  was, 
doubtless,  fault  on  the  part  of  those  who  delivered  the  explosive  substance 
to  defendants  for  carriage  over  their  express  route,  without  informing  them 
of  the  dangerous  character  of  the  article,  for  which  they  may  be  liable  to 
defendants.  The  rule  seems  to  be  established,  that,  with  respect  to  liability 
for  waste,  the  tenant  is  in  a  position  analogous  to  that  of  a  common  car- 
rier, and  without  some  special  agreement  to  the  contrary,  responsible  for 
all  waste,  however  or  by  whom  committed,  except  it  be  occasioned  by  act  of 
God,  the  public  enemy,  or  the  act  of  the  reversioner  himself.  4  Kent,  Comm. 
77 ;  AttersoU  v.  Stevens,  1  Taunt.  183  [1808] ;  Cook  v.  Champlain  Transp. 
Co.,  1  Denio,  91  [1845] ;  2  Eden,  Inj.  198,  and  notes.  In  White  v.  Wagner, 
4  Har.  &  J.  [Md.]  373,  7  Am.  Dec.  674  [1818],  this  doctrine  was  carried  out 
in  an  extreme  case.  The  tenant"  is  hold  responsible  to  the  landlord,  and  left 
to  his  remedy  over  against  the  delinquent  party.  The  liability  does  not 
depend  on  mere  negligence,  but  it  is  imposed  on  the  same  grounds  of  public 
policv  as  those  upon  which  the  strict  liabilities  of  common  carriers  are  made 
to  rest."  Parrott  v.  Barney,  2  Abb.  U.  S.  197,  207,  Fed.  Cas.  No.  10,773 
(1870). 

See  AttersoU  v.  Stevens,  1  Taunt.  183  (1808) ;  White  v.  Wagner,  4  Har.  & 
J.  (Md.)  373,  7  Am.  Dec.  674  (1818);  Regan  v.  Luthy  (Com.  PL)  11  N.  Y. 
Supp.  709  (1890). 

-0  Part  of  the  opinion  Is  omitted. 


Ch.  7)  WASTE  673 

to  the  lands  of  the  plaintiff.  The  single  question  involved. in  this 
appeal  is  whether  the  recovery  should  have  been  Hmited  to  the  dam- 
ages to  the  hfe  estate.  The  right  of  the  plaintiff  to  recover  all  of  the 
damages  has  thus  far  been  maintained  on  the  ground  that  she  is  lia- 
ble to  the  remaindermen  for  any  injury  to  the  inheritance  not  caused 
by  them,  the  act  of  God,  or  the  public  enemy.  No  case  is  known  in 
which  a  tenant  has  been  subjected  to  such  a  rule  of  liability,  and  the 
proposition  is  so  startling  as  to  demand  examination  before  it  is  made 
the  ground  of  a  decision  by  us.     *     *     * 

This  is  an  action  for  negligence  against  a  stranger  both  to  the  life 
estate  and  the  remainder,  and  it  may  well  be  doubted  whether  tlie  doc- 
trine of  waste  has  any  application  at  all  to  it.  Waste  is  thus  defined 
by  Bouvier : 

"Spoil  or  destruction  done  or  permitted  to  lands,  houses,  or  other 
corporeal  hereditaments,  by  the  tenant  thereof,  to  the  prejudice  of  the 
heir  or  of  him  in-  reversion  or  remainder.  Permissive  waste  consists 
in  -the  mere  neglect  or  omission  to  do  what  will  prevent  injury;  as 
to  suffer  a  house  to  go  to  decay  for  the  want  of  repair.  And  it  may 
be  incurred  in  respect  to  the  soil,  as  well  as  to  the  buildings,  trees, 
fences,  or  live  stock  on  the  premises.  Voluntary  waste  consists  in 
the  commission  of  some  destructive  act;  as  in  pulling  down  a  house 
or  ploughing  up  a  flower  garden."  "There  are  two  kinds  of  waste, 
viz.,  voluntary  or  actual,  and  negligent  or  permissive.  Voluntary 
waste  may  be  done  by  pulling  down  or  prostrating  houses,  or  cutting 
down  timber  trees;  negligent  waste  may  be  suft'ering  houses  to  be 
uncovered,  whereby  the  spars  or  rafters,  planches  or  other  timber  of 
the  house  are  rotted."    Bacon's  Abridgment,  vol.  10,  p.  422. 

In  the  popular  sense,  any  injury  may  be  waste,  but  it  is  not  waste 
in  the  legal  sense,  unless  caused  in  such  manner  as  to  be  within  the 
legal  definition  of  either  commissive  or  permissive  waste. 

The  rule  contended  for  is  based  on  Lord  Coke's  interpretation  of 
two  English  statutes  passed  in  the  thirteenth  century,  the  statute  of 
Marlbridge,  52  Henry  III,  c.  24,  and  the  statute  of  Gloucester,  6 
Edward  I,  c.  5.     *     *     * 

Lord  Coke  gives  two  reasons  for  allowing  the  reversioner  to  re- 
cover of  the  tenant  for  waste  committed  by  a  stranger : 

(1)  "For  it  is  presumed  in  law  that  the  former  may  withstand  it" 
(2  Inst.  145,  146) ;  and  (2)  "for  he  in  the  reversion  cannot  have  any 
remedy  but  against  the  tenant"  (2  Inst.  303.) 

.It  may  be  open  to  some  question  whether  by  "stranger"  he  did  not 
mean  the  assignee  of  the  tenant,  against  whom  he  said  that  the  heir 
could  not  maintain  an  action  for  waste.  2  Inst.  300.  But,  at  any 
rate,  it  is  plain  that  under  that  head  he  referred  to  voluntary,  not 
permissive,  waste.  The  Court  of  Chancery  did  not  interfere  to  pro- 
hibit permissive  waste.  In  Lord  Castlemain  v.  Lord  Craven,  the 
Master  of  the  Rolls  said: 

BiG.RlGHTS — i3 


674  RIGHTS   IN   THE   LAND   OF  ANOTHER  (Part  2 

"But,  as  to  repairs,  the  court  never  interposes  in  case  of  permissive 
waste,  either  to  pi-ohibit  or  give  satisfaction,  as  it  does  in  case  of  will- 
ful waste."    22  Vin.  Abr.  523. 

Certainly  there  is  no  basis  for  any  presumption  that  the  tenant 
could  have  prevented  such  an  injury  as  was  done  in  this  case.  One 
of  the  reasons  given  for  likening  the  liability  of  a  tenant  to  that  of  a 
common  carrier  is  that  it  is  imposed  to  prevent  collusion.  Attersoll, 
V.  Stevens,  1  Taunt.  183,  198.  That  reason  cannot  apply  with  any 
force  except  to  cases  of  voluntary  waste.  Lord  Coke  does  except 
the  case  of  injuries  done  by  the  enemies  of  the  king,  and  by  tempest, 
lightning)  and  the  like,  but  in  that  connection  he  also  instances  a  case 
in  which  it  was  adjudged: 

"That  if  thieves  burn  the  house  of  tenant  for  life,  without  evil  keep- 
ing of  lessees  for  lives  fire,  the  lessee  shall  not  be  punished  therefor  in 
an  action  of  waste."    2  Inst.  303. 

In  Halsbury's  Laws  of  England  (volume  18,  p.  499)  it  is  said: 

"Lessees  for  years,  or  from  year  to  year,  or  for  any  other  period, 
are  liable  for  voluntary  waste,  whether  committed  by  themselves-  or 
any  other  person,  for,  if  committed  by  another,  it  is  their  duty,  and 
they  are  presumed  to  be  able,  to  withstand  it." 

The  case  in  1  Taunton,  supra,  is  the  one  generally  cited  as  the  lead- 
ing case  in  support  of  the  proposition  that  the  tenant  is  liable  for 
waste  committed  by  a  stranger,  but  that  was  a  case  of  voluntary  waste, 
the  removal  of  clay. 

Even  assuming  that  by  the  rule  of  the  ancient  common  law  an  in- 
jury caused  by  the  negligent  act  of  a  stranger  both  to  the  estate  for 
life  or  years  and  to  the  reversion  or  remainder  amounted  to  waste, 
for  which  the  tenant  for  life  or  years  was  responsible,  the  reasons  for 
the  rule  given  by  Lord  Coke  either  no  longer  exist  or  do  not  apply  to 
the  facts  of  this  case.  The  ancient  common-law  forms  of  action  have 
been  abolished,  and  the  impediment  of  the  common  law  against  the 
maintenance  of  ah  action  for  waste  by  reversioner  or  remaindermen 
in  case  there  was  an  intervening  estate  (2  Inst.  301 ;  Coke  upon  Lit- 
tleton, vol,  3,  p.  *243)  was  removed  in  this  state  by  chapter  246,  §  47, 
of  the  Laws  of  1811,  which  provided: 

"That  it  shall  and  may  be  lawful  for  any  person  or  persons  seised 
of  an  estate  in  remainder  or  reversion,  to  maintain  an  action  of  waste 
or  trespass  for  any  injury  done  to  the  inheritance,  notwithstanding 
any  intervening  estate  for  life  or  for  years."     *     *     * 

Certain  other  statutes  affecting  the  obligation  of  tenants  remain  to 
be  considered.  The  statute  of  6  Anne,  c.  31,  relieved  an  owner  from 
liability  for  an  accidental  fire  starting  in  his  house  or  chamber,  and 
the  statute  of  14  George  III,  c.  78,  extended  the  exemption  to  such 
fires  starting  anywhere  on  one's  estate.  Primarily,  those  statutes  were 
intended  to  relieve  from  the  rigorous  rule  of  the  ancient  law  which 
made  a  person  liable  for  the  consequences  of  a  fire  originating  upon 
his  own  premises  and  spreading  to  his  neighbor's.    But  they  are  broad 


Ch.  7)  WASTE  675 

enough  to  affect  the  habihty  of  a  tenant  to  reversioner  or  remainder- 
man, and  have  been  so  construed  (see  4  Kent,  *82),  and  they  have  been 
held  to  be  part  of  the  law  of  this  state.  Lansing  v.  Stone,  37  Barb. 
15.  And  see  Hoffman  v.  King,  160  N.  Y.  618,  at  page  622,  55  N.  E. 
401,  46  L.  R.  A.  672,  73  Am.  St.  Rep.  715.  Whilst  a  fire  is  not 
accidental,  within  the  meaning  of  those  statutes,  if  caused  by  the  neg- 
ligence of  the  tenant,  or  his  servants  (Filliter  v.  Phippard,  11  Ad.  & 
E.  [N.  S.]  347),  and  the  statute  literally  applies  only  to  a  fire  begin- 
ning on  one's  premises,  there  is  no  substantial  reason  for  making  a 
distinction  as  to  the  liability  of  a  tenant  between  an  accidental  fire 
and  one  caused  by  the  negligence  of  strangers,  or  between  a  fire  ac- 
cidentally beginning  on  the  premises  and  one  spreading  thereto  from 
adjoining  premises. 

By  chapter  345  of  the  Laws  of  1860  (now  section  227  of  the  Real 
Property  Law'  [Consol.  Laws,  c.  50])  a  lessee  or  occupant  of  a  build- 
ing is  relieved  from  the  obligation  to  pay  rent  in  case  it  is  destroyed 
or  rendered  untenantable  by  the  elements  or  any  other  cause  without 
any  fault  or  neglect  on  his  part.  In  the  absence  of  covenant,  no  ob- 
ligation rests  upon  either  the  landlord  or  the  tenant  to  rebuild  in  such 
case.  Smith  v.  Kerr,  108  N.  Y.  31,  15  N.  E.  70,  2  Am.  St.  Rep.  362. 
The  law  would  be  in  an  anornalous  state  if  a  tenant,  though  under  no 
obligation  to  rebuild  or  to  pay  rent,  were  still  answerable  in  damages, 
or  if,  though  not  liable  for  the  injury  or  destruction  of  buildings 
without  his  fault,  he  were  still  liable  for  other  injuries  to  the  prem- 
ises, though  equally  without  fault.  Those  statutes  do  not  in  terms 
apply  to  a  case  like  this,  doubtless  for  the  reason  that  no  one  had 
ever  attempted  to  hold  a  tenant  responsible  in  such  case.  The  writ- 
ten and  the  unwritten  law  should  be  consistent,  and  the  whole  body 
of  law  governing  the  obligations  of  tenants  should  by  analogy  be 
made  to  harmonize  with  the  said  statutory  rules. 

Moreover,  the  statutes  of  Marlbridge  and  Gloucester  were  super- 
seded in  this  state  by  chapter  6  of  the  Laws  of  1787,  which  provided: 

"That  no  tenant  for  life  or  years  or  for  any  other  term  shall  during 
the  term  make  or  suffer  any  waste  *  *  *  without  special  license 
in  writing  making  mention  that  he  may  do  it  *  *  *  and  whoever 
shall  be  convicted  of  waste  shall  lose  the  thing  or  place  wasted  and 
shall  recompense  thrice  so  much  as  the  damage  shall  be  taxed  at  by 
the  jury." 

That  statute  was  substantially  re-enacted  by  2  R.  S.  334,  and  is  now 
embodied  in  section  1651  et  seq.  of  the  Code  of  Civil  Procedure. 
Whilst  the  construction  given  a  similar  statute  of  earlier  times  may 
have  weight,  our  own  statute  should  be  construed  according  to  the 
social  conditions  of  its  time,  and  should  not  be  controlled  by  the  con- 
struction of  a  statute  passed  in  the  thirteenth  century.     *     *     * 

It  thus  appears  that  there  is  no  binding  decision  of  this  court  upon 
the  point  whether  an  injury  by  the  negligent  acts  of  third  parties  is 
waste,  for  which  the  tenant  is  liable  to  the  reversioner  or  remainder- 


676  RIGHTS   IN  THE  LAND   OF  ANOTHER  (Part  2 

man,  and  the  consequences  of  holding  such  a  doctrine  would  be  too 
serious  to  justify  us  in  resting  the  right  of  the  plaintiff  to  recover 
upon  it. 

The  doctrine  has  only  been  invoked  in  this  state  to  permit  the  ten- 
ant to  recover  from  the  wrongdoer.  Cook  v.  Champlain  Transporta- 
tion Co.,  supra  [1  Denio,  91]  ;  Austin  v.  Hudson  R.  R.  R.  Co.,  supra 
[25  N.  Y.  334]  ;  Dix  v.  Jaquay,  94  App.  Div.  554,  88  N.  Y.  Supp. 
228;  United  Traction  Co.  v.  Ferguson  Contracting  Co.,  117  App. 
Div.  305,  102  N.  Y.  Supp.  190.  And  it  may  well  be  that  a  rule  so 
long  recognized  may  be  adhered  to  without  adopting  the  reason  orig- 
inally assigned  for  it.  In  Dix  v.  Jaquay,  supra,  the  Appellate  Divi- 
sion in  the  Third  Department  naturally  followed  the  Cook  Case,  but 
in  a  well-reasoned  opinion  Mr.  Justice  (now  Presiding  Justice) 
Smith  suggested  what  appears  to  us  to  be  a  much  better  reason  for 
maintaining  the  rule  than  that  assigned  in  the  Cook  Case.  Notwith- 
standing the  removal  of  the  impediments  of  the  ancient  common  law, 
there  will  be  many  cases  in  which,  for  practical  reasons,  the  tenant 
alone  can  compel  redress  from  the  wrongdoer,  and  it  should  not  be 
open  to  the  latter  to  escape  liability  by  asserting  the  rights  of  a  third 
party,  under  whom  he  does  not  claim.  The  tenant  has  not  only  pos- 
session, but  an-  interest  in  the  premises,  in  this  case  a  life  estate,  and 
there  is  equal,  if  not  greater,  reason  for  allowing  a  full  recovery  by 
him  as  for  allowing  a  depositary,  who  has  no  interest,  but  only  pos- 
session, to  recover  for  the  conversion  of,  or  an  injury  to,  the  deposit. 
A  bailee,  though  not  liable  to  the  bailor,  may  recover  for  the  wrong- 
ful act  of  a  third  party  resulting  in  the  loss  of,  or  injury  to,  the  sub- 
ject of  the  bailment.  Kellogg  v.  Sweeney,  1  Lans.  397;  Id.,  46  N.  Y. 
291,  7  Am.  Rep.  333.  And  see  Mechanics'  &  T.  Bank  v.  F.  &  M. 
Bank,  60  N.  Y.  40;  Russell  v.  Butterfield,  21  Wend.  300;  Faulkner 
v.  Brown,  13  Wend.  63;  Finn  v.  Western  Railroad  Co.,  112  Mass. 
524,  17  Am.  Rep.  128;  Johnson  v.  Holyoke,  105  Mass.  80;  Chamber- 
lain v.  West,  37'  Minn.  54,  33  N.  W.  114.  If  the  bailee  recovers,  he 
holds  the  recovery  as  trustee  for  the  bailor.  A  recovery  by  either 
bailor  or  bailee  will  bar  an  action  by  the  other.  First  Commercial 
Bank  of  Pontiac  v.  Valentine,  209  N.  Y.  145,  and  citations  at  page 
150,  102  N.  E.  544,  Ann.  Cas.  1913D,  1104;  Woodman  v.  Notting- 
ham, 49  N.  H.  387,  6  Am.  Rep.  526.  The  principle  is  the  same  as  that 
applied  in  Madison  Square  Bank  v.  Pierce,  137  N.  Y.  444,  33  N.  E. 
557,  20  L.  R.  A.  335,  33  Am.  St.  Rep.  751,  in  which  it  was  held  that 
the  payee  might  recover  from  the  maker  the  full  r.mount  of  a  prom- 
issory note,  notwithstanding  an  indorser  had  paid  part;  the  plaintiff 
in  such  case  becoming  trustee  for  the  indorser  of  so  much  of  the  ro- 
covery  as  represents  the  amount  paid  by  the  latter. 

The  recovery  in  this  case  might  be  treated  as  a  substitute  pro  tanto 
for  the  land  damaged,  as  would  be  the  case  of  the  proceeds  of  a  sale 
(see  Ackerman  v.  Gorton,  67  N.  Y.  63) ;  the  plaintiff  being  entitled 
to  the  life  use  of  it,  and  becoming  trustee  of  the  principal  for  the 


Ch.  7)  WASTE  677 

remaindermen.  See  Smith  v.  Van  Ostrand,  64  N.  Y.  278;  Leggett 
V.  Stevens,  185  N.  Y.  70,  at  page  76,  77  N.  E.  874.  The  recovery 
might  be  apportioned  between  Hfe  tenant  and  remaindermen  accord- 
ing to  their  respective  interests,  and  the  court  might  require  the  life 
tenant,  if  intrusted  with  the  principal,  to  give  security.  See  Matter 
of  Camp,  126  N.  Y.  377,  27  N.  E.  799;  Matter  of  McDougall,  141 
N.  Y.  21,  35  N.  E.  961.  It  is  for  the  court  to  make  proper  provision 
for  the  protection  of  the  rights  of  remaindermen.  The  wrongdoer 
is  only  concerned  in  being  protected  from  a  second  suit,  and  we  are 
of  the  opinion  that  it  must  be  held,  as  a  necessary  corollary  to  the 
proposition  that  the  life  tenant  may  recover  all  tlie  damages,  that 
such  a  recovery  will  bar  an  action  by  the  remaindermen. 

The  judgment  should  be  affirmed,  with  costs. 

Werner,  Hiscock,  Chase,  Colwn,  Hogan,  and  Cardozo,  JJ., 
K;oiicur. 

Judgment  affirmed.'^* 


SECTION  2.— REMEDIES  FOR  WASTE 


CO.  LIT.  53b. 

No  person  shall  have  an  action  of  wast,  unlesse  he  hath  the  imme- 
diate state  of  inheritance.^^  *  *  *  j£  ^^  tenant  doth  wast,  and 
he  in  the  reversion  dyeth,  the  heyre  shall  not  have  an  action  of  waste 
for  the  waste  done  in  the  life  of  the  ancestor.  *  *  *  And  so  if 
lessee  for  yeares  doth  waste,  and  dyeth,  an  action  of  wast  lyeth  not 
against  the  executor  or  administrator  for  waste  done  before  their 
time.  But  if  two  coparceners  be  of  a  reversion,  and  waste  is  com- 
mitted, and  the  one  of  them  die,  the  aunt  and  the  neece  shall  joine  in 
an  action  of  waste.     ♦     *     * 

Note,  after  wast  done  there  is  a  speciall  regard  to  be  had  to  the 
continuance  of  the  reversion  in  the  same  state  that  it  was  at  the  time 
of  the  waste  done;  for  if  after  the  waste  he  granteth  it  over,  though 
he  taketh  backe  the  whole  estate  again,  yet  is  the  wast  dispunishable. 
So  if  he  grant  the  reversion  to  the  use  of  himself e  and  his  wife,  and 
of  his  heires,  yet  the  wast  is  dispunishable,  and  so  of  the  like;  be- 
cause the  estate  of  the  reversion  continueth  not,  but  is  altered,  and 
consequently  the  action  of  waste  for  waste  done  before  (which  con- 
sists in  privity)  is  gone.     *     *     * 

2iAca:  Sampson  v.  Grogan,  21  R.  I.  174,  42  Atl.  712,  44  L.  R.  A.  711 
(1899).     See  Miller  v.  Shields,  55  Ind.  71  (1876). 

The  life  tenant  may  recover  entire  damages  against  the  tort-feasor,  for  the 
reason  that  the  former  is  liable  to  the  remainderman  as  for  waste.  Willev 
V.  Laraway,  64  Vt.  559,  25  Atl.  436   (1892). 

22  See  Hunt  v.  Hall,  37  Me.  3G3  (1853). 


078  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

If  a  lease  be  made  to  A.  for  life,  the  remainder  to  B.  for  life,  the 
remainder  to  C.  in  fee,  in  this  case  where  it  is  said  in  the  Register, 
and  in  F.  N.  B.  that  an  action  of  wast  doth  lie,  it  is  to  be  understood 
after  the  death  or  surrender  of  B.  in  the  meane  remainder,  for  during 
his  life  no  action  of  waste  doth  lie. 

But  if  a  lease  for  life  be  made,  the  remainder  for  yeares,  the  re- 
mainder in  fee,  an  action  doth  lie  presently  during  the  terme  in  re- 
mainder, for  the  meane  terme  for  yeares  is  no  impediment. 

But  if  a  man  make  a  lease  for  life  or  yeares,  and  after  granteth  the 
reversion  for  yeares,  the  lessor  shall  have  no  action  of  waste  during 
the  yeares,  for  he  himself  hath  granted  away  the  reversion,  in  respect 
whereof  he  is  to  maintaine  his  action.  Otherwise  it  is,  if  he  had  made 
a  lease  in  reversion,  which  had  been  but  a  future  interest;  for  there 
an  action  of  wast  lieth  during  the  terme,  and  so  is  the  booke  to  be  un- 
derstood, and  the  terme  shall  be  saved  in  that  case. 


ANONYMOUS. 

(Court  of  Chaucery,  1599.     Moore,  554,  pi.  748.) 

By  Egerton,  Keeper  of  the  Great  Seal ;  that  he  had  seen  a  prece- 
dent in  the  time  of  Richard  II,  that  where  there  is  tenant  for  life, 
the  remainder  for  life,  the  remainder  over  in  fee,  by  which  waste 
in  the  first  tenant  for  life  is  dispunishable  by  the  common  law:  still 
it  has  been  decreed  in  Chancery  by  the  advice  of  the  judges  upon  com- 
plaint of  him  in  remainder  in  fee  that  the  first  tenant  shall  not  com- 
mit waste  and  an  injunction  was  granted.^^ 


UDAL.v.  UDAL. 
(Court  of  King's  Bench,  1648.     Aleyn  81.) 

[Estates  were  limited  as  follows :  To  Sir  William  Udal  in  tail, 
remainder  to  the  defendant  for  life,  remainder  to  his  first  and  other 
sons  in  tail,  remainder  to  W.  U.  for  life,  with  like  remainder  to  his 
sons  in  tail,  remainder  to  the  plaintiff  in  tail.  Sir  William  Udal  died 
without  issue;  the  defendant  (neither  himself  nor  W.  U.  having  any 
sons)  entered  and  cut  down  timber  and  some  years  later  sold  part  of 
it,  the  plaintiff  seized  the  rest,  the  defendant  retook  it  and  sold  it,  and 
the  plaintiff  brought  trover.] 

And  (the  case  being  argued  Trin.  Pasch.  ult.  and  this  term)  it  was 
resolved  by  Bacon  and  Roll.  1.    That  if  there  be  tenant  for  life,  the 

23Acc.:  1  RoUe,  Abr.  377,  Chancerie  R.  13  (semble) ;  Farrant  v.  Lovel, 
3  Atk.  723  (1750) ;  Dennett  v.  Dennett,  43  N.  H.  499  (1S62). 


Ch.  7)  WASTE  679 

remainder  for  life,  and  tenant  for  life  cut  down  timber  trees,  he  that 
hath  the  inheritance  may  seise  them,  although  he  cannot  have  an  ac- 
tion of  waste  during  the  life  of  him  in  remainder;  for  1.  The  particu- 
lar tenant  hath  not  the  absolute  property  in  the  trees,  but  only  a  spe- 
cial interest  in  them,  so  long  as  they  continue  annexed  to  the  land. 
And  therefore  a  termer  cannot  grant  away  his  term  excepting  the 
trees,  but  the  exception  is  void,  for  that  he  cannot  have  a  distinct 
interest  in  them  but  only  relative  to  the  land.^*  *  *  *  Mainard 
said  it  was  adjudged,  Mich.  14  E.  2,  in  a  case  not  printed,  that  where 
he  in  reversion  upon  an  estate  for  life  granted  his  reversion  for  life, 
and  the  tenant  for  life  made  waste,  and  then  the  grantee  of  the  rever- 
sion dyed,  that  an  action  of  waste  would  lye  against  the  tenant  for 
life,  which  proves  that  the  cutting  down  of  the  trees  by  tlie  tenant 
was  tortious. 

It  was  resolved  that  the  mean  remainders  in  contingency,  though 
of  an  estate  of  inheritance,  alter  not  the  case;  for  an  estate  in  con- 
tingency is  no  estate  till  the  contingency  happen:  and  therefore  it 
was  agreed  that  the  plaintiff  might  have  had  an  action  of  waste  in 
this  case,  had  there  not  been  a  remainder  for  life  in  esse,  notwithstand- 
ing the  mean  contingent  remainders. 

It  was  resolved  that  a  trover  and  conversion  in  this  case,  would 
lye  for  all  the  timber  trees  though  the  plaintiff  never  seized  parcel  of 
them,  for  by  the  cutting  down  of  them  an  absolute  property  was  vest- 
ed in  tlie  plaintiff,  unless  they  had  been  cut  down  for  reparations  and 
so  imployed  in  convenient  time.  *  *  *  And  judgment  was  given 
for  the  plaintiff. 

Quaere  in  the  case  cited,  if  a  lessor  should  bring  trover  against  a 
stranger  for  trees  cut  by  him,  if  this  should  be  a  bar  to  an  action  of 
waste  for  the  trees.  And  if  there  were  cause  for  reparations,  what 
remedy  hath  the  lessee  for  his  loss,  for  it  should  seem  that  he  will  be 
liable  to  an  action  of  waste  for  not  repairing,  although  the  lessor  re- 
covers for  the  trees. 


PERROT  V.  PERROT. 

(Court  of  Chancery,  1744.     3  Atk.  94.) 

There  was  a  limitation  in  a  settlement  to  the  defendant  for  life,  to 
trustees  to  preserve  contingent  remainders,  to  his  first  and  every  other 
son  in  tail,  remainder  to  plaintiff  for  life  (remainder  to  trustees  to 
preserve  contingent  remainders),  with  remainder  to  his  first  and  every 
son  in  tail,  reversion  in  fee  to  the  defendant. 

The  first  tenant  for  life  (before  he  had  any  son  born)  cuts  down  tim- 

2  4  Part  of  the  case  is  omitted. 


680  RIGHTS   IN  THE   LAND  OF  ANOIHKR  (Part  2 

ber,  the  plaintiff,  who  is  the  second  tenant  for  life,  brings  his  bill  for 
an  injunction  to  stay  waste. 

Mr,  Attorney  General  for  the  plaintiff  shewed  cause  why  the  in- 
junction for  restraining  the  defendant  from  committing  any  further 
waste  should  not  be  dissolved. 

It  was  insisted  by  Mr.  SoHcitor  General,  for  the  defendant,  that  the 
timber  which  he  has  cut  down,  are  decayed  trees,  and  will  be  the  worse 
for  standing,  and  that  it  is  of  service  to  the  publick,  that  they  should 
be  cut  down ;  and  that  it  is  very  notorious  that  timber,  especially  oak, 
when  it  is  come  to  perfection,  decays  much  faster  in  the  next  twenty 
years,  than  it  improves  in  goodness  the  twenty  years  immediately  pre- 
ceding. 

That  as  the  defendant  has  exercised  this  power  in  such  a  restrained 
manner,  and  confined  himself  merely  to  decayed  timber,  which  grows 
worse  every  day,  that  this  court  will  not  interpose,  especially  as  the 
plaintiff  is  not  entitled  to  come  into  this  court,  as  he  has  not  the  im- 
mediate remainder,  and  besides  has  no  remedy  at  law. 

Lord  Chancellor.  The  question  here  does  not  concern  the  in- 
terest of  the  publick,  unless  it  had  been  in  the  case  of  the  King's  for- 
ests and  chases;  for  this  is  merely  a  private  interest  in  the  parties; 
and  it  is  by  accident  that  no  action  at  law  can  be  maintained  against 
the  defendant,  because  no  person  can  bring  it,  but  who  has  the  immedi- 
ate remainder. 

Consider  too  in  how  many  cases  this  court  has  interposed  to  prevent 
waste.. 

Suppose  here  the  trustees  to  preserve  contingent  remainders  had 
brought  a  bill  against  the  defendant  to  stay  waste  for  the  benefit  of  the 
contingent  remainders  (vide  Whitfield  v.  Bewit,  2  Cox's  P.  W.  240, 
note  1 ;  Garth  v.  Cotton,  post  [3  Atk.]  751 ;  Williams  v.  Duke  of 
Bolton,  3  Cox's  P.  W.  268,  note  3.)  I  am  of  opinion  they  might  have 
supported  it,  but  here  it  is  the  second  tenant  for  life  (vide  Roswell's 
case,  1  Roll's  Ab.  377,  pi.  13 ;  3  P.  W.  268,  note),  who  has  done  it,  and 
though  he  has  no  right  to  the  timber,  yet  if  the  defendant,  the  first  ten- 
ant for  life,  should  die  without  sons,  the  plaintiff  will  have  an  interest 
in  the  mast  and  shade  of  the  timber. 

The  case  of  Welbeck  Park,  which  has  been  mentioned,  was  a  very 
particular  one,  because  there,  by  the  accident  of  a  tempest,  tlie  timber 
was  blown  down,  and  was  merely  the  act  of  God. 

But  this  is  not  the  present  case,  for  there  a  bare  tenant  for  life  takes 
upon  him  to  cut  down  timber,  and  it  is  not  pretended  that  they  arc 
pollards  only:  and  though  the  defendant's  counsel  have  attempted  to 
make  a  distinction  between  cutting  down  young  timber  trees  that  arc 
not  come  to  their  full  growth  and  decayed  timber,  I  know  of  no  sucli 
distinction,  either  in  law  or  equity. 

Therefore  upon  the  authority  of  those  cases  which  have  been  very 
numerous  in  this  court,  of  interposing  to  stay  waste  in  the  tenant  for 


Ch.  7)  AVASTE  6S1 

life,  where  no  action  can.  be  maintained  against  him  at  law,  as  the 
plaintiff  has  not  the  immediate  remainder,  the  injunction  must  be  con- 
tinued till  the  hearing.    (Reg.  Lib.  B,  1743,  fol.  432.)" 


KLIE  et  al.  v.  VON  BROOCK  et  al. 
(Court  of  Chancery  of  New  Jersey,  1897.     56  N.  J.  Eq.  18,  37  Atl.  469.) 

[The  facts  of  the  case  are  stated  ante,  p.  653.] 

Pitney,  V.  C.  *  *  *  As  to  the  remedy.  In  the  prayer  of  com- 
plainants' bill  they  ask  that  the  defendants  may  be  ordered  either  to 
restore  the  opening  in  the  party  wall,  or  to  give  security  for  its  restora- 
tion at  the  end  of  the  term.  By  thus  praying  for  alternate  relief,  I 
understand  that  the  complainants  did  not  intend  to  give  to  the  de- 
fendants an  option  of  submitting  to  the  latter  remedy,  but  simply  to  ask 
that  the  court  should  give  it  if  the  first  remedy  of  immediate  restora- 
tion was  not  considered  by  the  court  proper  and  equitable.  The  de- 
fendants, by  their  answer,  and  at  the  hearing,  offered  to  give  security 
for  restoration  at  the  end  of  the  term,  but  complainants,  at  the  hear- 
ing, insisted  upon  immediate  restoration.  It  is  well  settled  that  com- 
plainants are  entitled  to  immediate  relief,  and  are  not  obliged  to  wait 
until  the  end  of  the  term.  Agate  v.  Lowenbein,  57  N.  Y.  604,  and 
cases  cited  at  page  612  et  seq.  In  the  present  case  the  waste  was  com- 
mitted against  the  known  wishes  and  protest  of  complainants,  and 
with  such  haste  that  it  was  substantially  completed  before  complain- 
ants could  obtain  preventive  relief  from  this  court.  It  further  suffi- 
ciently appears  that  the  carrying  out  of  defendants'  plan  will  be  in- 
consistent with  the  spirit,  if  not  the  letter,  of  the  agreement.  The 
intention  was  that  the  restaurant  should  be  conducted  in  such  a  man- 
ner as  to  increase  the  patronage  of  complainants'  liquor  saloon,  and 
should  not  be,  in  any  sense,  a  competitor  for  their  business.  The  com- 
plainants allege  in  their  bill  that  the  intention  of  defendants  is  to  keep 
a  rival  liquor  saloon  in  No.  39.  This  is  not  denied  by  defendants  in 
their  answer.  In  fact,  they  say  they  propose  to  keep  an  hotel  there. 
If  so,  and  a  passageway  is  kept  open  between  the  two  buildings,  pa- 
trons of  the  restaurant  in  No.  35  may  possibly  be  served  with  intox- 
icants from  a  bar  in  No.  39  without  a  breach  of  the  letter  of  the 
agreement.  This  consideration  shows  the  motive,  or  one  of  the  mo- 
tives, behind  complainants'  action,  and  it  cannot  be  affirmed  that  it 
is  unworthy  or  inequitable.    *    *    * 

The  authorities  justify  the  use  of  a  mandatory  injunction  in  such 
cases.  The  leading  case  is  Vane  v.  Lord  Barnard,  2  Vern.  738,  known 
as  the  "Raby  Castle  Case."  This  was  followed  by  Rolt  v.  Lord  Som- 
erviJle  (1737),  decided  by  Lord  Hardwicke,  and  reported  in  2  Eq.  Cas. 
Abr.,  at  page  759,  where  there  was  a  cutting  of  trees,  and  also  pulling 

26Acc.:     Kane  v.  Vandenburgh,  1  Johns.  Ch.  (N.  Y.)  11  (181'J). 


G82  niGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 

down  houses  and  buildings.  The  prayer  was  that  the  premises  might 
be  restored.  Lord  Hardwicke  said  that  he  could  not  compel  the  res- 
toration of  the  trees;  but  he  said,  "Yet,  as  to  the  pulling  down  the 
houses  and  buildings  and  laying  the  lead  pipes,  they  may  be  restored 
or  put  in  as  good  condition  again," — citing  with  approbation,  the  case 
of  Vane  v.  Lord  Barnard.  I  think  the  present  a  proper  case  for 
immediate  restoration. 

I  will  advise  a  decree  that  the  defendants  be  restrained  from  per- 
mitting the  opening  in  the  party  wall  made  by  them  on  or  about  May 
10,  1896,  to  remain  in  its  present  condition,  or  from  permitting  the 
party  wall  between  the  leased  premises  and  those  of  the  Hoboken 
Land  Improvement  Company  on  the  west  to  be  in  any  other  condition 
than  it  w^as  prior  to  the  opening  made  herein,  by  the  defendants ;  and, 
further,  if  complainants  desire  themselves  to  do  the  work  of  restora- 
tion, then  that  the  defendants  be  restrained  from  preventing  the  com- 
plainants from  so  doing  at  a  reasonable  time  and  in  a  reasonable  man- 
ner; and  the  court  will  name  a  special  master,  under  whose  super- 
vision the  work  of  restoration  shall  be "  done,  if  the  parties  cannot 
agree  thereupon.  The  provision  for  restoration  may  also  include  the 
window  opening  upon  th'e  area  if  the  brickwork  has  not  already  been 
restored  to  its  original  condition.^* 


DICKINSON  V.  MAYOR  AND  CITY  COUNCIL  OF  BALTI- 
MORE. 

(Court  of  Appeals  of  Maryland,  1S7S.    48  Md.  583,  30  Am.  Rep.  492.) 

Stewart,  J.,^^  delivered  the  opinion  of  the  Court. 

The  appellant  had  leased  to  the  appellee  or  its  agent,  a  certain  store 
or  cellar,  in  tlie  City  of  Baltimore,  for  the  term  of  three  years;  the 
term  had  expired  and  the  property  was  surrendered  to  her. 

Waste  thereon,  or  injury  thereto,  being  alleged  to  have  been  com- 
mitted by  the  appellee  during  the  tenancy,  this  action  was  brought  for 
the  recovery  of  damages  therefor. 

During  the  pendency  of  the  action  the  appellant  conveyed  the  prop- 
erty to  the  appellee. 

This  alienation  was  relied  upon  as  a  sufficient  defence  to  the  action, 
the  appellee  insisting  that  to  enable  the  appellant  to  recover,  it  was 
necessary  not  only  that  she  should  hold  the  reversionary  interest  when 
the  waste  was  done,  but  at  the  time  of  the  recovery. 

2  8  Equity  will  ordinarily  enjoin  tbe  commission- of  waste  where  an  action 

at  law  would  also  lie.     Onslow  v.  ,  16  Ves.   173  (1809) ;    Douglass  v. 

'Wiggii^s,  1  Johns.  Cr.  435  (1815);  Davis  v.  Gilliam,  ante,  p.  &i6;  Davenport 
V.  Magoon,  13  Or.  3,  4  Pac.  299,  57  Am.  Rep.  1  (1884). 

Equity  will  not  enjoin  meliorating  waste.  Doherty  v.  Allman,  L.  ~R.  3  A. 
C.  709  (1S7S). 

2'  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Ch.  7)  WASTE  683 

The  Superior  Court  entertained  this  view,  and  so  ruled,  in  which 
~  we  think  there  was  error. 

The  right  of  the  appellant  otherwise  to  recover,  seems  not  to  have 
been  questioned. 

The  law  in  regard  to  ancient  and  modern  remedies  for  waste,  is  well 
stated  in  note  7,  Greene  v.  Cole,  3  Wms.  Saunders,  252. 

The  action  of  waste  as  formerly  known  was  a  mixed  action,  being 
partly  real  and  partly  personal,  and  consisted  in  privity,  and  by  it  the 
owner  of  the  inheritance  in  reversion,  or  remainder,  in  fee  or  tail,  re- 
covered against  the  tenant  in  dower,  tenant  by  the  curtesy  or  guardian 
in  chivalry,  the  thing  or  place  upon  which  the  waste  was  committed, 
and  also  damages  for  the  injury.  It  was  therefore  necessary  that 
the  plaintiff  should  be  entitled  to  the  property  upon  which  the  waste 
was  committed,  not  only  at  the  time  of  the  waste,  but  when  the  re- 
covery was  had.  There  can  be  no  doubt  therefore,  that  the  action  of 
waste  could  only  be  brought  by  the  person  having  the  inheritance  at 
the  time  when  the  waste  was  committed  to  his  prejudice  by  the  respec- 
tive tenants  aforesaid,  and  being  confined  in  its  operation,  to  the  pro- 
prietor of  the  inheritance  and  the  tenant  of  the  land,  between  whom 
there  existed  a  relation  of  privity  to  some  extent  according  to  the 
nature  of  the  tenure,  if  after  the  waste,  the  inheritance  was  alienated, 
and  that  privity  broken  up,  the  action  of  waste  was  gone.  Coke  upon 
Lit.  53a. 

By  the  Statute  of  Marlbridge,  52  Henry  3,  ch.  23,  and  of  Statute 
6  Ed.  1,  ch.  5,  the  action  of  waste  was  given  a  wider  range,  and  could 
be  brought  against  lessee  for  life  or  years,  or  against  the  assignee 
of  the  same  for  waste  done  after  the  assignment.  1  Sharswood's  Black- 
stone,  283;  2  Blackstone's  Com.  178,  n.  7;  Greene  v.  Cole,  3  Saund- 
ers Rep.  252,  n.  7. 

To  avoid  the  defective  and  inadequate  remedy  afforded  by  this  ac- 
tion, as  known  to  the  common  law,  or  as  modified  by  the  Statutes  of 
Marlbridge  and  Gloucester,  and  to  provide  an  effectual  remedy  or 
method  of  recovery  against  tenant  or  stranger,  where  no  privity  ex- 
isted, better  adapted  to  the  exigencies  of  the  case,  the  action  on  the 
case  in  the  nature  of  waste,  as  it  is  denominated,  was  devised ;  which 
enables  the  party  who  has  been  injured  in  his  reversionary  right,  to 
recover  damages  for  the  same,  and  whether  he  has  become  repos- 
sessed of  the  property  after  the  injury,  or  has  transferred  the  same, 
does  not  affect  the  claim  for  the  damages  committed  to  his  property  at 
the  time  it  belonged  to  him.  It  extends  to  every  case  where  one  who 
has  any  reversionary  interest  or  estate  in  the  premises  suffers  bv  the 
tortious  act  of  the  actual  tenant  or  occupant.  The  transfer  of  the 
estate  afterwards  cannot  operate  to  condone  the  wrong. 

It  is  an  equitable  action  and  not  discountenanced  bv  any  tech- 
nical consideration,  but  must  be  sustained  in  all  cases,  and  against  all 
persons,  who  are  by  the  common  law  or  under  the  statutes  aforesaid,. 


684  RIGHTS  IN  THE   LAND   OF  ANOTHER  (Part  2 

liable  to  the  action  of  waste.  White  v.  Wagner,  4  Har.  &  J.,  373,  7 
Am.  Dec.  674,  per  Justice  Johnson. 

It  can  be  brought  by  a  party  in  remainder  for  life  or  years,  as  in  fee 
or  tail,  who  held  the  interest  at  the  time  of  the  injury.  McLaughlin 
V.  Long,  5  Har.  &  J.  113. 

It  entitles  the  party  to  recover  for  the  actual  damage  committed, 
with  costs,  against  any  one  who  commits  the  wrong,  whether  lessee 
or  stranger.  1  Wash,  on  Real  Property,  153;  4  Kent,  Com.  83;  Tay- 
lor's Landlord  and  Tenant,  sec.  688;  Addison  on  Torts,  245.    *    *    * 

That  privity  is  no  longer  necessary  is  well  established,  for  the  ac- 
tion may  be  brought  against  a  stranger.     *     *     * 

Upon  what  sound  principle  can  it  be  held,  because  the  reversioner 
of  the  estate,  after  the  waste  committed,  has  ahenated  her  interest, 
(whether  to  the  party  committing  the  waste  or  to  another,  can  make 
no  difference,)  she  is  to  be  precluded  from  a  recovery?  We  know 
of  none. 

If  the  plaintiff  here  held  the  reversionary  interest  in  the  property 
at  the  times  the  alleged  waste  was  committed,  she  is  entitled  to  recover 
for  the  same ;  and  her  alienation  of  the  property  subsequently,  or  dur- 
ing the  pendency  of  the  suit  for  damages,  cannot  operate  to  defeat  her 
right  of  recovery. 

Judgment  reversed,  and  new  trial  ordered." 


SCHERMERHORN  v.  BUELL. 
(Supreme  Court  of  New  York,  1847.     4  Denio,  422.) 

Error  to  Genesee  C.  P.  Schermerhorn  sued  Buell  in  the  court  be- 
low, and  declared  in  trespass.  One  count  was  for  cutting  and  carrying 
away  trees ;  and  one  count  was  simply  for  taking  and  carrying  away. 
The  case  was  as  follows:  On  the  24th  of  May,  1837,  the  plaintiff  by 
a  lease,  not  under  seal,  demised  to  the  defendant  a  lot  of  land  contain- 
ing 96  acres,  for  the  term  of  six  years  commencing  on  the  1st  of  No- 
vember following,  for  the  yearly  rent  of  $150,  which  rent  the  defend- 
ant agreed  to  pay,  with  all  taxes,  &c.  The  lease  contained  a  clause  as 
follows:  "All  of  the  timber  in  the  southeast  corner,  of  about  five 
acres,  suitable  and  proper  for  fuel,  to  be  left  and  not  cleared."  The 
lot  was  wild  and  uncultivated  at  the  date  of  the  lease.  It  was  called 
"oak  openings."  The  defendant  entered,  and  cleared  and  cultivated 
most  of  the  land :  and  on  the  five  acres  in  the  southeast  corner  of  the 
lot  he  cut  some  trees  which  were  suitable  and  proper  for  fuel  and 
carried  away  the  timber.  For  that  wrong  this  action  was  brought. 
The  suit  was  commenced  before  the  term  granted  by  the  lease  had 
expired,  and  while  the  defendant  was  in  possession.     The  court  be- 

28  Ace:  Robinson  v,  Wheeler,  25  N.  Y.  252  (1862).  See  Bacon  v.  Smith, 
1  Q.  B.  345  (1841);  Dupree  v.  Dupree,  49  N.  C.  387,  69  Am.  Dec.  757   (1857). 


Ch.  7)  WASTE  6S5 

low  held  that  the  plaintiff  could  not  maintain  trespass,  and  directed  the 
jury  to  find  a  verdict  for  the  defendant,  which  they  did,  and  judgment 
was  rendered  in  his  favor.  The  plaintiff  brings  error  on  a  bill  of  excep- 
tions. 

Bronson,  C.  J.  When  the  lessor  excepts  the  trees  on  the  demised 
premises,  they  do  not  pass  with  the  land,  and  he  may  enter,  cut  and 
carry  them  away ;  and  he  can  maintain  trespass  against  the  tenant,  if 
he  cuts  them.  (1  Saund.  322,  n.  5;  1  Ld.  Raym.  551,  552;  Cro.  EHz. 
17,  18;  Vin.  Abr.  Trees,  (A.)  pi.  6;  Bac.  Abr.  Trespass,  (C.)  3;  Bul- 
len  V.  Denning,  5  Barn.  &  Cress.  842.)  But  in  this  case,  I  am  not 
able  to  see  that  the  trees  were  excepted.  When  there  is  any  doubt  about 
the  meaning  of  an  exception  in  a  lease,  the  words,  being  considered 
those  of  the  lessor,  are  construed  favorably  for  the  lessee.  (Bullen 
V.  Denning,  5  Bam.  &  Cress,  842;  Cardigan  v.  Armitage,  2  id.  197.) 
The  clause  in  this  lease  in  relation  to  the  timber  on  the  five  acres  in 
the  southeast  comer  of  the  lot  is  not  even  in  the  form  of  an  exception ; 
and  nothing  more  can  be  made  of  it  than  an  agreement  between  the 
parties  that  the  timber  on  the  five  acres  should  "be  left,  and  not  clear- 
ed," or  cut  off.  The  defendant  is  bound  by  the  agreement,  and  must 
answer  for  breaking  it;  but  it  does  not  limit  the  extent  of  the  grant. 
The  whole  lot,  with  all  the  timber  upon  it,  passed  by  the  demise.  With- 
out the  clause,  the  law  would  have  imposed  the  duty  of  preserving  a 
portion  of  the  timber;  and  it  might  have  been  proper  to  save  it  in  differ- 
ent parts  of  the  lot,  and  to  an  extent  either  greater  or  less  than  five 
acres  in  the  whole,  as  the  rules  of  good  husbandry  should  decide. 
But  the  parties  have  settled  that  matter  by  contract,  saying  where  and  to 
what  extent  the  timbers  should  be  preserved.  The  case  then  stands  on 
the  same  principle  as  though  there  had  been  no  such  clause  in  the  lease, 
and  the  law  had  decided  that  the  timber  on  the  five  acres  should  not 
be  cut.  In  either  case,  the  interest  in  the  trees,  for  all  the  purposes  of 
shade  and  fruit,  would  pass  with  the  land  to  the  lessee ;  but  the  gen- 
eral property  in  the  trees  would  remain  in  the  lessor.  And  if  the  ten- 
ant improperly  cut  the  timber,  his  interest  in  it  is  thereby  determined ; 
and  the  landlord  may  have  an  action  of  waste,  an  action  on  the  case 
in  the  nature  of  waste,  or  an  action  on  the  contract,  where  there  is 
one  touching  the  subject,^®  for  the  injury  done  to  the  land;  or  he  may 
have  an  action  of  trover  for  the  wood  which  has  been  severed  from  the 
freehold.'"  (Berry  v.  Heard,  Cro.  Car.  242;  Palmer,  327,  and  W. 
Jones,  255,  S.  C. ;  Com.  Dig.  Biens,  (H.)  Trees ;  Vin.  Abr.  Maeresme, 
(A.)  pi.  2,  3;   1  Chit.  PI.  160.  ed.  of  1837.) 

The  question  here  is,  whether  the  landlord  may  not  also  have  tres- 
pass for  the  carrying  away  and  conversion  of  the  wood  after  the  trees 


2  9  See  Chalmers  v.  Smith,  ante,  p.  667. 

80  Brook  V.  Rogers,  101  Ala.  Ill,  13  South.  3S6  (1893).  So  also  replevin. 
Richardson  v.  York,  14  Me.  216  (1837);  Warren  County  v.  Gans,  SO  Miss 
76,  31  South.  539  (1902). 


686  RIGHTS   IN   THE   LAND   OF  ANOTHER  (Part  2 

had  been  cut.  It  was  laid  down  long  ago,  and  I  do  not  find  that  the 
doctrine  has  ever  been  denied,  that  if  lessee  for  years  cuts  down  tim- 
ber trees  and  lets  them  lie,  and  after  carries  them  away,  so  that  the 
taking  and  carrying  away  be  not  as  one  continued  act,  but  that  there  be 
some  time  for  the  distinct  property  of  a  divided  chattel  to  settle  in  the 
lessor,  that  an  action  of  trespass  vi  et  armis  will  lie  against  the  lessee. 
(Udal  V.  Udal,  Aleyn,  81 ;  Vin.  Abr.  Trees,  (A.)  pi.  7 ;  and  tit.  Tres- 
pass, (S.)  pi.  10;  1  Chit.  PI.  206,  ed.  of  1837.)  It  is  true,  that  tres- 
pass for  an  injury  to  real  property  which  is  occupied  at  the  time,  can 
only  be  maintained  by  the  person  in  actual  possession.  I  cannot  now 
call  to  mind  more  than  two  exceptions  to  this  general  rule.  One,  where 
the  wrong  is  done  by  a  tenant  at  will,  in  which  case  the  injury  amounts 
to  a  determination  of  the  will  and  of  his  possession.  The  other  excep- 
tion is,  where  the  wrong  was  done  by  a  disseisor,  and  the  disseissee 
afterwards  regains  the  possession.  In  that  case  the  disseissee  is  deemed 
in  law  to  have  had  the  possession  from  the  beginning.  (Holmes  v. 
Seely,  19  Wend.  507;  Tobey  v.  Webster,  3  Johns.  468;  Phillips -v. 
Covert,  7  Johns.  1 ;   3  Black.  Com.  210.) 

But  the  point  under  consideration  is  not  whether  the  lessor  can 
maintain  trespass  against  the  lessee  for  an  injury  to  the  freehold;  but 
whether  he  can  have  that  action  for  carrying  away  and  converting  the 
trees  after  they  have  been  wrongfully  severed  from  the  freehold.  Up- 
on the  authorities  already  cited,  the  action  may  be  supported ;  and,  as 
I  think,  without  violating  any  legal  principle.  The  interest  which  the 
lessee  had  in  the  trees  is  determined  by  the  wrongful  act  of  cutting 
them  down ;  and  the  general  property  which  the  lessor  had  before,  sub- 
ject to  the  rights  of  the  lessee,  has  now  become  absolute.  The  trees 
have  become  mere  personal  chattels,  and  the  lessor  is  the  general  owner, 
and  entitled  to  immediate  possession.  He  is  in  a  condition  to  maintain 
trespass  against  any  one  who  takes  and  carries  away  the  property.  It 
is  said,  that  as  the  lessee  is  in  the  rightful  possession  of  the  land,  the 
lessor  has  no  right  to  enter  upon  it  for  the  purpose  of  carrying  away 
the  trees  after  they  have  been  cut  down.  That  may  be  so ;  and  the 
lessor  may  not  be  able  to  maintain  trespass  so  long  as  the  trees  re- 
main on  the  land.  But  the  right  to  the  possession  of  the  chattel  may  be 
complete,  although  there  may  be  no  right  to  enter  upon  the  land  of 
another  for  the  purpose  of  taking  it.  As  the  lessor  has  the  right,  both 
of  property  and  possession,  in  the  trees,  he  may  sue  whenever  they 
are  carried  away  and  converted  to  the  use  of  another. 

Whether  the  trees  were  cut  at  one  time,  and  carried  away  at  another, 
was,  upon  the  evidence,  a  question  for  the  jury. 

Judgment  reversed.^^ 

SI  It  has  been  held  that  the  reversioner  may  maintain  trespass  d.  b.  a. 
against  a  stranger  wrongfully  cutting  and  carrying  away  tlie  wood.  Bulklev 
V.  Dolbeare.  7  Conn.  232  (1S2S) ;  Lane  v.  Thompson,  43  X.  H.  320  (1801). 
See,  also,  Rogers  v.  Atlantic,  G.  &  P.  Co.,  ante,  p.  672. 

If  the  tenant  wrongfully  cuts  timber  and  shells  it  to  a   third  person  who 


Ch.  7)  WASTE  687 

BATEMAN  v.  HOTCHKIN. 
(Court  of  Cliaucery,  18G2.     31   Beav.  4S€.) 

A  question  arose  as  to  the  right  of  a  tenant  for  life  impeachable  for 
waste  to  a  fund  derived  partly  from  wood  blown  do\^^n  by  a  storm. 

The  question  was  brought  before  the  Master  of  the  Rolls  in  Cham- 
bers, who  gave  the  following  opinion  in  writing: 

"That  in  the  case  of  waste  committed  by  a  tenant  for  life  by  cutting 
timber,  the  produce  of  the  sale  of  it  is  part  of  the  inheritance,  and  as 
the  tenant  for  life  can  gain  no  advantage  by  his  own  wrongful  act, 
the  produce  is  invested  and  accumulated,  for  the  benefit  of  the  first 
estate  of  inheritance. 

"In  the  case  of  timber  blown  down  by  a  storm,  there  is  no  waste,  be- 
cause, it  is  the  act  of  God,  but  the  produce  of  the  sale  of  it  belongs 
to  the  inheritance,  that  is,  the  money  must  be  invested  in  consols, 
and  the  interest  paid  to  the  tenant  for  life." 

Mr.  Speed,  for  the  plaintiff,  contended  that  timber  "whenever  it  is 
severed  by  the  act  of  God,  as  by  tempest,  or  by  a  trespasser  and  'by 
wrong,  it  belongs  to  him  who  has  the  first  estate  of  inheritance." 

Mr.  C.  Hall,  for  the  tenant  for  life,  claimed  the  benefit  of  all  the 
windfalls.  He  argued  that  there  was  a  question  as  to  what  part  of  the 
fund  arose  from  wood  to  which  a  tenant  for  life  impeachable  for 
waste  was  entitled  to  cut.  That  what  was  timber  depended  on  local 
custom,  and  tliat  a  tenant  for  life  was  entitled  to  thinnings,  and  to 
timber  cut  periodically  or  planted,  as  fir,  for  the  protection  of  young 
timber. 

The  Master  of  the  Rolls  [Sir  John  Romilly].  I  am  of  opin- 
ion that  the  tenant  for  life  is  entitled  to  have  the  benefit  of  the  sale  of 
all  such  trees  felled  by  the  wind  as  he  would  be  entitled  to  cut  him- 
self, and  to  all  fair  and  proper  thinnings,  and  to  all  coppices  cut  pe- 
riodically in  the  nature  of  crops. 

There  must  be  an  inquiry  to  ascertain  what  part  of  the  fund  is  de- 
rived from  timber  or  cuttings  within  that  description.^^ 

bilys  in  good  faitb,  the  reversioner  may  maintain  trover  against  tlie  third 
person,  Mooers  v.  Wait,  3  Wend.  (N.  Y.)  104,  20  Am.  Dec.  067  (18i;9) ;  or  re- 
plevy the  wood,  Hill  v.  Burgess,  37  S.  C.  604,  15  S.  E.  963  (1892). 

32  Compare  Toolcer  v.  Annesley,  5  Sim.  235  (1832);  Stonebraker  v.  Zollick- 
offer,  52  Md.  154,  36  Am.  Rep.  364  (1S79) ;  Shult  v.  Barker,  12  Serg.  &  U. 
(Pa.)  272   (1824). 


688  RIGHTS  IN  THE   LA^D   OF  ANOTHER  (Fart  2 

SECTION  3.— EQUITABLE  WASTE. 


LEWIS  BOWLES'  CASE. 

(Court   of   King's   Bench,    1615.     11    Coke,    79b.) 

Lewis  Bowles,  Esq.,  brought  an  action  upon  the  case  upon  trover, 
against  Haseldine  Bury  the  younger,  (which  began  in  the  King's 
Bench,  Hil.  10  Jacobi  Regis,  Rot.  1319,)  and  declared,  that  he  was 
possessed  of  thirty  cart  loads  of  timber,  and  lost  them,  and  that  they 
came  into  the  hands  of  the  defendant,  and  that  he  ^0  Feb.  anno  9  Jac. 
Regis,  at  Norton,  in  the  county  of  Hertford,  converted  them  to  his 
own  use ;  and  upon  not  guilty  pleaded,  the  jury  gave  a  special  verdict 
to  this  effect.  Thomas  Bowles,  Esq.  grandfather  of  the  said  Lewis, 
was  seised  of  the  manor  of  Norton-Bury,  in  the  said  county  in  fee, 
and,  1  Sept.  anno  12,  by  indenture,  betwixt  him  on  the  one  part,  and 
William  Hide,  and  Leonard  Hide  of  the  other  part,  in  consideration  of 
a  marriage  to  be  had  betwixt  the  said  Thomas  Bowles  and  Anne, 
daughter  of  the  said  William  Hide,  &c.  covenanted,  that  after  the 
said  marriage  had  and  solemnized,  that  the  said  Thomas,  his  heirs 
and  assigns,  would  stand  seized  of  the  said  manor  of  Norton-Bury, 
to  the  use  of  the  said  Thomas  and  Anne,  for  the  term  of  their  lives, 
and  without  impeachment  of  Avaste,  and  after  their  deceases,  to  the  use 
of  their  first  issue  male,  and  to  the  heirs  male  of  such  issue  lawfully 
begotten,  and  so  over  to  the  second,  third,  and  fourth  issue  male,  &c. 
and  for  want  of  such  issue,  to  the  use  of  the  heirs  males  of  the  body 
of  the  said  Thomas  and  Anne  lawfully  begotten ;  and  for  want  of  such 
issue,  to  the  use  of  Thomas  Bowles,  son  and  heir  apparent  of  Thomas 
Bowles  the  grandfather,  and  the  heirs  males  of  his  body  issuing, 
and  for  want  of  such  issue,  to  the  use  of  the  heirs  of  the  body  of 
the  said  Thomas  and  Anne  lawfully  issuing.  Which  marriage  was 
solemnized  accordingly,  and  the  said  Thomas  the  grandfather,  and 
Anne,  had  issue  John;  and  afterwards  the  said  Thomas  the  grand- 
father died  without  any  issue  on  the  body  of  Anne,  but  the  said  John : 
after  whose  death  the  said  Anne  entered  into  the  said  manor,  and 
was  thereof  seised,  with  the  said  remainder  over,  as  aforesaid,  and 
afterwards  the  said  John  Bowles  died,  and  afterwards  Thomas  the 
son  conveyed  by  fine  his  remainder  to  the  use  of  Lewis  Bowles  the 
plaintiff,  and  Diana  his  wife,  and  heirs  males  of  his  body;  and 
the  said  Anne  being  so  seised  of  the  said  manor,  with  the  remainder 
over  as  aforesaid,  viz.  20  Feb.  an.  Reg.  Jac.  reg.  9.  a  barn,  parcel  of 
the  said  manor  per  vim  ventorum  et  tempestat'  penitus  subvers.  et  ad 
terram  deject'  fuit,  and  that  the  said  thirty  cart  loads  of  timber,  in 
the  declaration  mentioned,  were  parcel  of  the  said  barn,  and  that  the 
said  timber  was  sound  and  fit  for  building,  wherefore  the  defendant. 


Ch.  7)  WASTE 


689 


as  servant  of  the  said  Anne,  and  by  her  command  took  the  said  tim- 
ber, and  carried  it  out  of  the  Hmits  of  the  said  manor  to  Radial,  in 
the  same  county ;  and  afterwards  the  said  Anne,  24  Feb.  anno  9.  Jac. 
Reg.  made  her  last  will,  and  thereof  made  Robert  Osborne  and  Leon. 
Hide,  Knts.  her  executors,  and  died,  after  whose  death  the  plaintiff 
seized  the  said  timber,  and  afterward  the  defendant,  by  the  command 
of  the  said  executors,  converted  it  to  his  use ;  and  if  upon  the  whole 
matter  the  defendant  was  guilty  or  not,  the  jury  prayed  the  opinion 
of  the  Court. 

And  in  this  case  two  questions  were  moved.  1.  If  upon  the  whole 
matter  the  wife  should  be  tenant  in  tail  after  possibility,  or  that  she 
should  have  the  privilege  of  a  tenant  in  tail  after  possibility,  sc.  to 
do  waste,  &c.  2.  Admitting  that  she  should  not  have  the  privilege,  &c. 
if  the  clause  of  "without  impeachment  of  waste,"  shall  give  her  prop- 
erty in  the  timber  so  blown  down  by  the  wind.    *    *    * 

That  tenant  in  tail,  after  possibility,  has  a  greater  pre-eminence  and 
privilege,  in  respect  of  the  quality  of  his  estate,  than  tenant  for  life, 
but  he  has  not  a  greater  quantity  of  estate  than  tenant  for  life;  in 
respect  of  the  quality  of  his  estate,  it  tastes  much  of  the  quality  of  an 
estate  in  tail,  out  of  which  it  is  derived:  and,  therefore,  1.  She  shall 
not  be  punished  for  waste.^^     *     *     * 

The  clause  of  "without  impeachment  of  waste"  gives  a  power  to 
the  lessee,  which  will  produce  an  interest  irt  him  if  he  executes  his 
power  during  the  privity  of  his  estate ;  and  therefore  to  examine  it  in 
reason.  1.  These  words  absque  impetitione  vasti,  are  as  much  as  to 
say,  without  any  demand  for  waste ;  for  impetitio  is  derived  from 
in  and  peto,  and  petere  is  to  demand,  petitio  is  a  demand,  and  sine 
impetitione  is  without  any  manner  of  demand  or  impeachment:  then 
this  word  demand  is  of  a  large  extent ;  for  if  a  man  disseises  me  of  my 
land,  or  takes  my  goods,  if  I  release  to  him  all  actions,  yet  I  may  enter 
into  the  land,  or  take  my  goods,  as  Lit.  holds,  fol.  115.  and  therewith 
agree  19  Ass.  3.  19  H.  6,  4b.  21  H.  7,  23b.  30  E.  3,  19,  for  by  the 
release  of  the  action,  the  right  or  interest  is  not  released,  but  if  in 
such  case  I  release  all  demands,  that  will  bar  me,  not  only  of  my  ac- 
tion, but  also  of  my  entry  and  seisure,  and  of  the  right  of  my  land,  and 
of  the  property  of  my  goods ;  as  it  was  resolved  in  Chauncy's  case, 
34  H.  8.  Br.  Release  90.  2  H.  7,  6b.  the  King  made  one  sheriff  sine 
computo,  thereby  he  shall  have  the  revenues  which  belong  to  his  office 
to  collect  to  his  own  use.  But  if  the  words  had  been  absque  impetit' 
vasti  per  aliquod  breve  de  vasto,  then  the  action  only  would  be  dis- 
charged, and  not  the  property  in  the  trees,  but  that  the  lessor  after  the 
fall  of  them  might  seise  them :  and  this  dift'erence  appears  in  3 
Edw.  3,  44a,  b,  in  Walter  Idle's  case,  where  a  lease  was  made  with- 
out being  impeached,  or  impleaded  for  waste,  upon  which  it  was  col- 
's See  Stevens  v.  Rose,  09  Mich.  259,  37  N.  W.  205  (1888). 
Big. Rights— 44 


GOO  RIGHTS   IX   THE   LAND   OF   ANOTHER  (Part  2 

lected  that  these  words  "without  being  impleaded,"  without  these 
words  "without  being  impeached  for  waste,"  were  not  sufficient  to  bar 
the  lessor  of  his  property,  and  that  if  the  lessor  had  granted  that  the 
lessee  might  do  waste,  he  thereby  had  power  not  only  to  do  waste, 
but  also  to  convert  it  to  his  own  use ;  and  that  the  words  of  the  said 
Act  of  Marlebridge,  and  the  statute  de  Praerogativa  Regis,  c.  16.  do 
[)rove  where  it  is  said,  that  the  King  shall  have  annum,  diem,  et  vas- 
tum,  sc.  which  is  as  much  as  to  say,  that  he  shall  have  the  trees,  &c. 
at  his  own  disposition. 

It  was  said,  that  the  continual  and  constant  opinion  of  all  ages  was, 
that  those  words  gave  power  to  the  lessee  to  do  waste  to  his  own  house, 
and  it  would  be  dangerous  now  to  recede  from  it,  and  as  it  is  said  in 
38  Edw.  3,  la,  by  the  Judges  (so  we  say  in  this  case)  we  will  not  change 
the  law  which  has  been  always  used.    *    *    * 

But  the  said  privilege  of  without  impeachment  of  waste,  is  annexed 
to  the  privity  of  estate,  3  Edw.  3,  44,  by  Shard  and  Stone ;  if  one  who 
has  a  particular  estate  without  impeachment  of  waste,  changes  his 
estate,  he  loses  his  advantage,  5  Hen.  5,  9a.  If  a  man  makes  a  lease 
for  years  without  impeachment  of  waste,  and  afterwards  he  confirms 
the  land  to  him  for  his  life,  now  he  shall  be  charged  for  waste,  28 
Hen.  8,  Dyer,  10b.  If  a  lease  is  made  to  one  for  the  term  of  another's 
life,  without  impeachment  of  waste,  the  remainder  to  him  for  his  own 
life,  now  he  is  punishable  for  waste,  for  the  first  estate  is  gone  and 
drowned.    *    *    * 

Lastly,  it  was  resolved,  that  the  said  woman  by  force  of  the  said 
clause  of  without  impeachment  of  waste,  had  such  power  and  privi- 
lege, that  though  in  the  case  at  Bar  no  waste  be  done,  because  the 
house  was  blown  down  per  vim  venti  without  her  fault,  yet  she  should 
have  the  timber  which  was  parcel  of  the  house,  and  also  the  timber 
trees  which  are  blown  down  with  the  wind ;  and  when  they  are  sev- 
ered from  the  inheritance  either  by  the  act  of  the  party  or  of  the  law, 
and  become  chattels,  the  whole  property  of  them  is  in  the  tenant  for 
life,  by  force  of  the  said  clause  of  "without  impeachment  for  waste." 
And  for  this  cause  judgment  was  given  per  omnes  justiciaries  una  voce, 
quod  querens  nihil  caperet  per  billam.^* 


1  ROLLE'S  ABRIDG.  380,  CHANCERIE  T.  3. 

If  a  lessee  for  years  without  impeachment  of  waste,  about  the  end 
of  his  term  intends  to  cut  down  all  the  timber  trees,  an  injunction  lies 
out  of  a  court  of  equity  upon  this  matter  to  stop  the  felling  of  the  trees, 
notwithstanding  the  agreement  of  the  parties;  because  it  is  contrary 
to  public  good  to  destroy  the  trees  and  the  suit  is  to  hinder  and  pre- 
vent this  and  not  to  have  damages  after  the  act  is  done.     Michelmas, 

8*  Part  of  the  case  is  omitted. 


Ch.  7)  WASTE  G91 

14  Car.  [1638]  B.  R.  in  the  said  Sahvay  case,  stated  by  Brampton  that 
this  was  the  Bishop  of  Winton's  case  which  was  referred  from  Chan- 
cery to  the  judges  and  by  their  advice  an  injunction  was  granted  for 
the  reason  aforesaid,^^ 


CLEMENT  V.  WHEELER  et  al. 
(Supreme  Court  of  New  Hampshire,  1S52.    25   N.  H.  361.) 

In  equity.    The  bill  stated  the  following  case: 

The  plaintiff,  Rodney  Clement,  is  the  son  of  Samuel  W.  Clement, 
who  died  testate,  on  the  10th  of  May,  1838,  owning  his  homestead 
farm,  in  Salem,  containing  one  hundred  acres,  and  ten  acres  of  wood 
land  in  Windham. 

By  liis  will,  he  devised  the  occupation  and  improvement  of  all  his 
real  estate  to  his  wife,  Elizabeth,  during  her  natural  life,  without  im- 
peachment of  waste.  To  the  plaintiff  he  devised  one  fourth  part  of  all 
the  real  estate  of  which  he  might  die  seized  and  possessed,  but  not  to 
come  into  possession  of  the  same  until  the  death  of  his  wife ;  and  he 
made  a  similar  devise  of  the  remaining  three-fourths  to  Samuel  Clem- 
ent, a  brother  of  the  plaintiff'.  Samuel  died  intestate  and  unmarried,  on 
the  16th  of  February,  1846,  leaving  his  mother,  Elizabeth,  the  plain- 
tiff, and  two  sisters,  his  heirs  at  law,  whereby  the  plaintiff  became 
seized  of  seven-sixteenths  of  the  land  described. 

Elizabeth  Clement  is  still  living,  and  on  the  13th  of  September,  1846, 
she  released  all  her  interest  in  the  homestead  farm' and  the  wood  land 
to  Delia  D.  Clement,  her  daughter,  who,  in  the  year  1847,  married  Day 
Wheeler,  and  Wheeler  and  his  wife  have,  both  before  and  since  the 
marriage  occupied  the  land,  which  has  upon  it  a  large  quantity  of  val- 
uable timber.    Wheeler  and  his  wife  have  already  cut  off  a  portion  of 

*^he  timber,  and  threaten  to  cut  the  remainder,  and  are  offering  to  sell 
;♦■*** 

Gilchrist,  C.  J.*®  It  is  unnecessary  to  refer  to  the  allegations 
in  the  bill  and  answer,  farther  than  to  show  what  the  facts  were  at  the 
time  the  bill  was  filed,  in  order  to  ascertain  whether  the  plaintiff  had 
any  reasonable  ground  for  complaint.  But  an  inquiry  is  necessary, 
to  a  certain  extent,  into  the  merits,  because  the  result  has  a  bearing 
upon  the  question  of  costs. 

Elizabeth  Clement  was  tenant  for  life,  without  impeachment  of 
waste.  Such  is  the  allegation  in  the  bill,  and  the  admission  in  the  an- 
swer. It  is  relevant  to  the  question  now  before  us,  to  inquire  what 
such  a  tenant  may  legally  do. 

Chancery  will  interpose  where  the  tenant  aft'ects  the  inheritance  in 
an  unreasonable  and  unconscientious  manner,  even  though  the  lease  be 

35ACC.:     Bishop  v.   Webb,  1  P.  Wms.  527    (171S);   Day  v.  ALerry,  lH   Vez. 
375  (ISIO)  ;  Duncombe  v.  Felt,  SI  Mich.  332,  45  N.  W.  1004   (1890). 
»«  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


692  RIGHTS   IN  THE  LAND   OF  ANOTHER  (Part  2 

granted  without  impeachment  of  waste.  Perrot  v.  Perrot,  3  Atk.  94; 
Aston  V.  Aston,  1  Ves.  264.  These  cases  are  referred  to,  as  contain- 
ing the  law  on  this  point,  by  Chancellor  Kent,  in  the  case  of  Kane  v. 
Vandenburgh,  1  Johns.  Ch.  (N.  Y.)  11.  At  common  law,  timber  cut 
by  the  tenant  for  hfe,  belonged  to  the  owner  of  the  inheritance,  and  the 
words  in  the  lease,  "without  impeachment  of  waste,"  had  the  effect 
of  transferring  to  the  lessee  the  property  in  the  timber.  Mooers  v. 
Wait,  3  Wend.  (N.  Y.)  104,  20  Am.  Dec.  667 ;  Payne  v.  Dor,  1  T.  R. 
55.  And  in  general  the' words  absque  impetitione  vasti,  that  is,  "with- 
out challenge  or  impeachment  of  waste,"  enable  the  tenant  for  life  to 
cut  down  timber  and  convert  it  to  his  own  use.  By  the  statute  of  Marl- 
bridge,  ch.  23,  it  appears  that  lessees  for  Hfe  could  not  rightfully  sell 
the  trees  or  pull  down  the  houses,  unless  the  lessor  had  by  deed  grant- 
ed them  the  power  to  do  so.  When  that  act  was  passed  the  clause 
"without  impeachment  of  waste"  was  in  use,  "which  proves  that  it 
was  to  such  purpose  that  the  lessee  might  commit  waste,  and  dispose 
it  to  his  own  use,  which  he  could  not  do  without  such  clause."  Bowles' 
Case,  11  Co.  Rep.  81. 

But  the  extensive  power  given  to  the  tenant  for  life  by  this  clause 
may  be  exercised  by  him  contrary  to  conscience,  and  in  an  unreason- 
able manner.  It  will,  therefore,  be  so  far  restrained  that  he  will  not 
be  allowed  to  commit  malicious  waste,  so  as  to  destroy  the  estate, 
which  is  called  equitable  waste.  A  leading  authority  upon  this  point 
is  Vane  v.  Lord  Barnard,  2  Vernon,  738,  commonly  called  "Lord 
Barnard's  Case."  The  defendant,  on  the  marriage  of  the  plaintiff,  his 
eldest  son,  settled  Raby  Castle  on  himself  for  life,  without  impeach- 
ment of  waste,  remainder  to  his  son  for  life,  and  to  his  first  and  other 
sons  in  tail  made. 

Afterwards,  having  taken  some  displeasure  against  his  son,  the  de- 
fendant got  two  hundred  workmen  together,  and  of  a  sudden,  in  a 
few  days,  stripped  the  castle  of  the  lead,  iron,  glass  doors  and  boards, 
&c.,  to  the  value  of  £3,000.  The  son  then  filed  a  bill  for  an  injunction 
to  stay  waste,  stating  that  the  defendant  had  proceeded  to  demolish 
the  castle,  and  had  pulled  down  one  of  the  rooms  and  sold  the  timber, 
lead,  iron,  and  other  materials,  and  converted  the  money,  being  a  con- 
siderable sum,  to  his  own  use.  "The  joists  on  which  the  floors  were 
laid  being  each  a  whole  oak  tree,  the  said  castle  being  beretofore  very 
strongly  built,  and  made  use  of  for  a  fortification,"  Lord  Cowper  im- 
mediately granted  an  injunction  to  stay  the  commission  of  waste  in 
puUing  down  the  castle,  and  afterwards  decreed  that  the  injunction 
should  be  continued,  and  that  the  castle  should  be  repaired.  And  the 
court  will  restrain  the  tenant  for  life,  without  hnpeachment  of  waste, 
from  committing  equitable  waste  by  cutting  timber,  planted  or  left 
standing,  for  the  shelter  or  ornament  of  a  mansion-house  or  grounds. 
Packington  v.  Packington,  3  Atk.  215 ;  Strathmore  v.  Bowes,  2  Brown, 
Ch.  C.  88.  "This  principle  has  been  extended  from  the  ornament  of  the 
house  to  out-houses  ana  grounds,  then  to  plantations,  vistas,  avenues, 


Ch.  7)  WASTE  693 

and  to  all  the  rides  about  the  estate  for  ten  miles  round.'^  Lord  Eldon, 
Devonshire  v.  Sandys,  note,  6  Ves.  410;  Sir  WilHam  Grant,  Mahon  v. 
Stanhope,  3  Madd.  523,  note.  The  remedy  by  injunction  is  applicable 
to  every  species  of  waste,  it  being  to  prevent  a  known  and  certain  in- 
jury.   Hawley  v.  Clowes,  2  Johns.  Ch.  (N.  Y.)  122. 

The  defendants  in  the  present  case  derive  their  title  from  Mrs. 
Elizabeth  Clement,  the  devisee  under  the  will,  having  a  conveyance  of 
all  her  interest  in  the  land.  They  may  exercise  all  the  rights  which 
their  grantor  possessed,  but  of  course  would  be  liable  for  exceeding  the 
powers  given  them  by  her  conveyance.  In  the  case  of  Coffin  v.  Coffin, 
Jac.  70,  the  defendant,  J.  P.  Coffin,  who  was  tenant  for  Ufe,  without 
impeachment  of  waste,  assigned  his  life  interest  to  one  Rowe,  who  was 
also  a  defendant,  and  Rowe  was  about  to  fell  certain  timber,  but  was 
restrained  by  injunction. 

Now  the  defendants  do  not,  upon  the  facts  admitted,  come  within 
any  class  of  persons  who  would,  upon  the  authorities,  be  restrained 
by  injunction  from  committing  waste.  It  does  not  appear  that  they 
have  done  any  acts  which  a  tenant  for  life,  without  impeachment  of 
waste,  may  not  lawfully  do.     *     *     *  '^ 

3T  "The  doctrine  of  the  Court  is  extremely  well  settled.  If  the  object  in 
planting  timber,  or  in  leaving  timber  standing,  is  ornament,  whether  that 
object  is  effected,  whether  the  effect  is  truly  ornamental,  or  the  most  ab- 
surd exhibition  that  ever  was  produced,  this  Court  will  protect  that  timber : 
and  the  protection  is  not  confined  to  trees  planted,  or  left  standing,  as  or- 
namental to  a  house  or  park ;  nor  does  it  depend  on  the  distance  from  the 
mansion.     *     *     * 

"In  framing  the  Issue  another  thing  also  must  be  attended  to;  by  whom 
the  trees  were  planted  or  left  standing  for  ornament:  as,  if  they  had  been 
planted  by  a  tenant  for  life  without  impeachment  of  waste,  unless  after- 
wards left  standing  with  that  view  by  some  person  having  the  inheritance, 
they  would  not  be  entitled  to  this  protection.     *     *     *    , 

"The  question  is  not,  whether  the  timber  is,  or  is  not,  ornamental ;  but 
the  fact  to  be  determined  is,  that  it  was  planted  for  ornament;  or,  if  not 
originally  planted  for  ornament,  was,  as  we  express  it,  left  standing  for 
ornament  by  some  person,  having  the  absolute  power  of  disposition.  If 
such  a  proprietor  had  even  the  bad  taste  to  plant  or  leave  standing,  a 
oouple  of  yew  trees  cut  in  the  shape  of  peacocks  on  the  road  side,  I  do  not 
shrink  from  what  I  laid  down  in  The  Marquis  of  Downshire  v.  Lady  Sandys 
[6  Ves.  Jr.  108  (1801)]  *  •  *  that  they  must  be  protected,  until  some 
person,  having  the  same  absolute  power  bf  disposition  with  more  correct 
taste,  comes  into  possession ;  and  this  doctrine  applies  in  the  same  manner 
to  a  pleasant  ride,  although  at  the  distance  of  two  miles  from  the  mansion 
house ;  but  I  do  not  agree,  that  a  mere  tenant  for  life,  coming  into  posses- 
sion, can  vary  the  estate.  That  can  be  done  only  by  some  person  having 
the  absolute  dominion  over  it." 

Lord  Chancellor  Eldon  in  Wombell  v.  Belasyse,  6  Ves.  Jr.  109,  note  (182.5). 

38ACC.:  Burges  v.  Lamb,  16  Ves.  174  (1809);  Findlay  v.  Smith,  6  Munf. 
(Va.)  134,  8  Am.  Dec.  733   (1818). 

A  tenant  in  tail  cannot  be  enjoined  from  either  legal  or  equitable  waste. 
Skelton  v.  Skelton,  2  Swanst'.  170  (1677) ;  Atty.  Gen.  v.  Marlborough,  3  Mad. 
498,  542  (1818).  See  Williams  v.  Williams,  15  Ves.  419  (1808) ;  Williams  v. 
Williams,  12  East,  209  (1810). 

A.  was  tenant  in  fee,  with  an  executory  devise  over  to  B.  in  fee  If  A. 
should  die  without  issue.  Held,  B.  may  enjoin  A.  from  cutting  the  orna- 
mental timber.  Turner  v.  Wright,  2  De  G.,  F.  &  J.  234  (1860).  Compare 
Robinson  v.  Litton,  3  Atk.  209   (1744). 


694  EIGHTS  IN   THE  LAND  OF  ANOTHER  (Part  2 

LUSHINGTON  v.  BOLDERO. 

(Rolls  Court,  1851.     15  Beav.  1.) 

In  1785  the  testator  devised  Aspeden  Hall  and  other  estates  to 
Charles  Boldero  for  life,  without  impeachment  of  waste,  with  re- 
mainder to  his  first  and  other  sons  in  tail,  with  similar  limitations  to 
William  Boldero  for  life,  without  impeachment  of  waste,  with  re- 
'mainder  to  his  first  and  other  sons  in  tail,  with  remainder  to  Henry 
Lushington  for  life,  without  impeachment  of  waste,  with  remainder  to 
his  first  and  other  sons  in  tail,  with  divers  remainders  over. 

In  1812  Charles  Boldero  and  Henry  Lushington,  and  their  part- 
ners, became  bankrupt,  and  the  assignees  imder  their  joint  commission 
having  proceeded  to  commit  equitable  waste  by  felling  ornamental 
timber,  this  bill  was,  in  1813,  filed  by  the  eldest  son  of  Henry  Lush- 
ington, who  was  then  and  is  now  the  first  tenant  in  tail  in  esse.  The 
Plaintiff  established  his  claim  (see  Lushington  v.  Boldero,  6  Mad. 
149;  and  G.  Cooper,  216),  and  the  assignees  were  ordered  to  pay 
into  Court  £6379.  4s.,  the  value  of  the  timber  and  interest,  to  an  ac- 
count intituled,  "The  Account  of  Timber  felled  by  the  Defendants, 
the  Assignees  of  the  Estate  of  Messrs.  Boldero,  Lushington  &  Co., 
Bankrupts."  This  was  done ;  and  it  was  directed*  to  accumulate,  and 
be  subject  to  the  .further  order  of  the  Court.  By  accumulation,  the 
fund  in  Court^now  exceeded  £26,000. 

William  Boldero  died  "several  years  since,"  without  having  been 
married.  In  1850  Charles  Boldero  being  still  living,  and  ninety-five 
years  of  age,  but  having  no  issue,  the  Plaintiff,  the  first  tenant  in 
tail  in  esse,  presented  his  petition  for  payment  to  him  of  the  fund  in 
Court.  The  case  came  before  Lord  Langdale  on  the  4th  of  Novem- 
ber, 1850,  when  his  Lordship  thought  that  the  case  could  not  be  de- 
cided until  it  had  been  ascertained  that  Charles  Boldero,  who  was  liv- 
ing, should  have  no  issue,  and  his  Lordship  therefore  ordered  the  pe- 
tition to  stand  over  until  after  the  death  of  Charles  Boldero. 

Charles  Boldero  died  in  August,  1851,  and  the  application  for  pay- 
ment was  now  again  renewed. 

The  Master  of  the  Rolls  [Sir  John  Romilly].  I  shall  first 
consider  what  would  have  been  the  effect  if  Charles  Boldero  had  him- 
self done  this  act.  He  was  tenant  for  life  without  impeachment  of 
waste,  and  having  cut  ornamental  timber,  the  Court  compelled  him 
to  pay  into  Court  the  amount  for  which  the  timber  was  sold ;  and, 
omitting  all  questions  respecting  intermediate  life-estates,  the  question 
now  is,  whether  he  or  the  reversioner  was  entitled  to  the  income  of 
that  fund.  The  equitable  doctrine  applicable  to  this  and  other  similar 
cases  is  this :  that  no  person  shall  obtain  any  advantage  by  his  own 
wrong.  But  it  is  manifest  that  the  tenant  for  life  may  obtain  very 
considerable  advantage  from  his  own  wrong,  if  he  were  to  cut  down 
timber  and  obtain  the  interest  of  the  fund;   his  income  for  life  would 


Ch.  7)  WASTE  695 

be  thereby  increased  beyond  what  it  would  have  been  if  the  timber 
had  not  been  cut. 

It  has  been  observed,  that  in  all  the  reported  cases  the  rule  has  been 
applied  to  the  corpus  of  the  fund;  but  that,  I  think,  ought  not  to 
vary  my  judgment,  because  it  depends  upon  this  equitable  and  just 
principle,  that  no  man  shall  obtain  a  benefit  by  his  own  wrongful  act ; 
the  authorities,  therefore,  which  lay  down  the  principle  in  cases  of 
corpus  only,  are  equally  applicable  to  any  species  of  interest  to  be  de- 
rived by  a  wrongful  act. 

It  is  then  said,  that  this  is  a  case  in  which  the  Court  does  not  im- 
pose a  forfeiture,  but  only  requires  restitution ;  and  that  to  deprive 
the  tenant  for  life  of  the  income,  it  would  be  to  inflict  a  penalty  upon 
him,  inasmuch  as  he  would  have  had  the  enjoyment  and  advantage  of 
the  shade  and  mast  of  the  timber  if  it  had  not  been  cut.  But  this  he 
deprives  himself  of  by  his  own  wrongful  act,  and  for  this  reason  the 
Court  refuses  to  give  him  any  substitution  or  remuneration.  It  is 
also  material  to  bear  in  mind  that  if  the  timber  had  not  been  cut  it 
would  have  increased  in  value  for  the  benefit  of  the  reversioner, 
but  that  has  been  rendered  impossible  by  the  tenant  for  life  having 
improperly  cut  it.  If,  therefore,  it  is  impossible  for  the  Court  to 
ascertain  what  portion  of  the  interest  ought  to  be  attributed  to  the  es- 
tate of  the  reversioner,  and  what  portion  to  the  enjoyment  of  the 
tenant  for  life,  it  is  the  tenant  for  life  who  has  himself  put  the  Court 
into  that  situation,  and  made  it  incapable  of  arriving  at  a  just  conclu- 
sion. It  is  not  a  case  in  which  the  Court  can  act  on  the  principle  of 
restitution.  The  case  put,  by  way  of  analogy,  of  a  tenant  for  life 
selling  out  the  fund,  and  being  compelled  to  restore  it,  is  inapplicable, 
because  the  tenant  for  life  cannot  in  this  case  restore  the  subject- 
matter. 

There  may  be  a  great  number  of  cases  in  which  the  timber  would 
become  of  great  value  when  the  reversion  fell  in;  and  it  is  impossible 
for  the  Court  to  ascertain  what  portion  of  it  would  have  been  en- 
joyed by  the  reversioner  if  the  wrongful  act  had  not  been  committed. 
Undoubtedly  the  tenant  for  life  does  in  some  cases  directly  gain  an 
advantage,  but  it  is  not  by  reason  of  his  own  act.  Thus,  where  by 
the  act  of  God  a  large  quantity  of  timber  is  blown  down  by  a  storm, 
the  produce  is  laid  out  in  the  purchase  of  stock,  and  the  interest  of  the 
fund  is  paid  to  the  successive  tenants  for  life.  So,  upon  the  same 
principle,  when  timber  is  decaying,  and  it  cannot  benefit  the  reversion- 
er to  allow  it  to  remain  standing,  the  Court,  having  ascertained  that 
it  is  for  the  benefit  of  all  parties,  orders  the  timber  to  be  cut  down,  and 
the  produce  to  be  invested,  and  the  interest  of  the  fund  to  be  paid  to 
the  tenants  for  life  in  succession. 

When,  however,  the  tenant  for  life  has  committed  the  wrongful  act 
which  produces  the  fund,  the  Court  will  not  allow  him  to  gain  any 
benefit  from  It ;  but  the  reversioner  takes  the  benefit  arising  from  an 
accretion  of  the  fund,  in  lieu  of  the  accretion  of  the  timber. 


696  RIGHTS   IN   THE   LAND   OF  ANOTHER  (Part  2 

Can  I  look  at  this  case  in  any  different  point  of  view,  because  the 
assignees,  and  not  the  tenant  for  life,  have  done  the  wrongful  act? 
The  assignees  stand  for  these  purposes  exactly  in  the  same  situation  as 
the  tenants  for  life;  they  are  bound  by  the  same  equities,  and  are 
exactly  in  the  same  position,  and  the  same  observations  apply  to  both. 
Nor  am  I  able  to  separate,  or  to  distinguish  the  case  of  Sir  Henry 
Lushington  from  that  of  Charles  Boldero ;  because,  if  the  two  ten- 
ants for  life  had  concurred  together,  and  had  agreed  between  them- 
selves that  the  one  in  possession  should  cut  the  timber,  and  that 
they  should  divide  the  produce  in  certain  proportions,  the  Court 
would  have  prevented  either  of  them  from  gaining  any  benefit  from 
the  wrongful  act  which  they  concurred  in  performing.  Here  they 
are  the  assignees  of  both ;  and  I  am  unable  to  find  any  principle  which 
says  that  the  assignees  must  not  stand  exactly  in  the  same  situation  as 
the  tenants  for  life  would  stand,  and  be  bound  by  exactly  the  same 
equities.  If  Charles  Boldero  had  died  immediately  afterwards,  and 
Sir  Henry  Lushington  had  survived  for  a  very  long  period,  and  the 
income  of  the  proceeds  of  the  timber  had  been  applied  during  that 
period  in  payment  of  the  joint  creditors,  they  would  have  obtained 
a  great  benefit  from  the  wrongful  act  of  the  assignees.  I  must  hold 
them  in  exactly  the  same  position  as  if  the  wrongful  act  had  been  com- 
mitted by  Sir  Henry  Lushington  alone.  I  cannot  separate  the  char- 
acters of  the  assignees;  they  are  assignees  for  the  joint  creditors 
and  of  the  joint  estate;  and  I  consider  that  I  must  treat  the  case  ex- 
actly in  the  same  way  as  if  the  two  tenants  for  life,  one  only  being  in 
possession,  had  concurred  in  the  wrongful  act  of  cutting  the  timber. 

It  was  suggested  that  I  should  suppose  the  possible  case  of  the 
commission  having  been  superseded ;  and  I  was  asked  whether  the 
tenant  for  life,  Sir  Henry  Lushington,  who  is  perfectly  innocent  in  the 
matter,  ought  to  be  prejudiced  by  the  wrongful  act  committed  by  his 
assignees.  It  would  be  hard  if  it  were  to  be  so ;  but  I  do  not  consider 
that  question  at  present,  because  it  does  not  arise  before  me.  But,  if 
the  question  did  arise,  it  is  manifest  that  the  remark  would  apply, 
just  as  much  to  the  case  of  Mr.  Charles  Boldero's  estate  as  to  that 
of  Sir  Henry  Lushington;  nor  can  I  find  anything  whatever  in  the 
fiduciary  character  of  the  assignees,  who,  in  matters  of  this  descrip- 
tion, stand  in  exactly  the  same  position  as  the  tenants  for  life,  to  pre- 
vent their  being  held  liable  precisely  in  the  same  manner  as  tlie  tenants 
for  life  themselves.  They  have  themselves  done  this  wrongful  act ; 
and  neither  they  nor  the  persons  for  whom  they  are  trustees  can  gain 
any  advantage  by  reason  of  it. 

I  am  of  opinion,  therefore,  that,  upon  the  petition,  I  must  make  an 
order  according  to  the  prayer.^** 

3  8 A.  was  tenant  for  life,  unimpeachable  for  waste;  the  ornamental  tim- 
ber was  growing  so  thickly  that  some  of  the  older  and  decaying  timber 
was  stunting  the  growth  of  the  younger  timber.  A.  cut  this  older  timber. 
Held,  he  is  entitled  to  the  proceeds  from  the  sale  thereof.    Baker  v.   Se^ 


Ch.  7)  '  WASTE  697 

The  assignees  appealed  to  the  Lords  Justices,  but  a  comproniise  was, 
after  argument,  effected. 

Reporter's  Note.— In  the  argument  of  this  case,  both  before  Lord 
Langdale  and  Sir  John  Romilly,  two  authorities  which  are  in  point  were 
overlooked.  In  Rolt  v.  Lord  Somerville  "  Lady  Somerville  was  tenant 
for  life,  without  impeachment  of  waste,  with  remainder  to  the  Plaintiff 
Rolt  for  life,  without  impeachment  of  waste,  with  several  remainders 
over.  Lord  Somerville  cut  down  several  groves  of  trees  planted  for 
the  shelter  and  ornament  of  the  mansion,  and  did  other  waste.  Rolt, 
the  tenant  for  life,  filed  a  bill  to  compel  the  Defendant  to  account  for 
the  monies  thus  raised.  To  this  the  Defendant  demurred,  and  in- 
sisted that  "the  Plaintiff  could  not  call  him  to  an  account  because  he 
was  not  a  remainderman  of  the  inheritance."  Lord  Hardwicke  ob- 
served, "I  cannot  say  the  Plaintiff  is  entitled  to  a  satisfaction  for  the 
timber,  which  is  a  damage  to  the  inheritance ;"  and  the  demurrer  was 
allowed  as  to  satisfaction  on  account  of  the  timber. 

The  second  case  is  that  of  the  Marquis  of  Ormonde  v.  Kynnersley, 
or  Butler  v.  Kynnersley,"  decided  by  Sir  John  Leach  and  after\vards 
by  Lord  Lyndhurst. 

In  that  case,  equitable  waste  was,  in  1805,  committed  by  Clement 
Kynnersley,  who  was  then  in  possession  as  the  tenant  for  life,  with- 
out impeachment  of  waste.  The  estate  was  limited  in  remainder  to 
his  first  and  other  sons  in  tail,  with  remainder  to  the  Marchioness  of 
Ormonde  and  Job  H.  P.  Clarke  for  life,  in  a  moiety,  with  remainder, 
as  to  the  whole,  to  her  first  and  other  sons  in  tail,  with  an  ultimate 
remainder  to  Job  H.  P.  Clarke  in  fee.  Neither  Clement  Kynnersley 
nor  the  M'archioness  of  Ormonde  had  any  issue,  and  Job  H.  P.  Clarke 
had  therefore  the  first  vested  estate  of  inheritance. 

Upon  a  bill  by  the  Marchioness  of  Ormonde  for  an  account  of  the 
timber,  a  decree  was,  in  the  first  instance,  made  by  Sir  John  Leach 
for  an  account  of  the  timber  (6th  May,  1820). 

There  was  a  reference  to  arbitration ;  and  on  a  motion  to  enforce 
the  award  (1824),  it  was  suggested,  that  "the  representative  of  Job 
H.  P.  Clarke  (if  any  one)  was  entitled  to  the  proceeds  of  the  timber 
cut  down."  The  cause  was  reheard  by  Sir  John  Leach  (23d  April, 
1825),  who  dismissed  the  bill,  on  the  ground  that  the  right  to  the  mon- 
ey vested  in  Job  H.  P.  Clarke.  The  cause  then  went  by  appeal  to 
the  House  of  Lords  (1828),  and  was  remitted  to  Chancery,  with  lib- 
erty to  appeal;  and,  ultimately  (20th  April,  1830),  Lord  Lyndhurst 
dismissed  the  appeal  with  costs,  on  the  ground  that  the  trees  belonged 


bright,  L.  R.  13  Ch.  D.  179  (1879).  See,  also,  Gent  v.  Harrison,  H.  R.  V. 
John's  Rep.  517   (1859). 

<o  2  Eq.  Ca.  Ab.  759  (1737). 

<i  7  Law  J.  (O.  S.)  Ch.  150  (1829),  and  8  Law  J.  (O.  S.)  CTi.  67  (1830),  and 
reported  on  other  points  in  5  Madd.  309  (1820),  2  Sim.  &  St.  15  (1824),  and 
2  Bli.  (N.  S.)  374  (1828).  . 


698  RIGHTS   liN   THE   LAND   OF   ANOTHER  (Part  2 

to  Job  H.  p.  Clarke,  as  the  person  entitled  to  the  first  vested  estate 
of  inheritance,  and  that  the  Plaintiff  had  no  interest. 

It  is  to  be  observed,  that  the  decision  of  the  Marquess  of  Ormonde 
V.  Kynnersley  is  scarcely  reconcilable,  first,  with  the  order  for  the  in- 
vestment and  accumulation  in  Lushington  v.  Boldero,  instead  of  for 
immediate  payment  to  the  Plaintiff,  the  owner  of  the  first  estate  of  in- 
heritance; nor  secondly,  with  Wellesley  v.  Wellesley,*-  where,  in- 
stead of  directing  payment  to  the  Plaintiff,  the  fund  was  paid  into 
Court,  and  formed  part  of  the  settlement  fund.     *     *     * 


In  re  BARRINGTON. 
GAMLEN  v.  LYON. 

(Chancery  Division,   1886.     L.   R.   33  Ch.    D.  523.) 

Originating  summons. 

Francis  Lyon  Barrington  was  owner  in  fee  of  certain  coal  mines  at 
Binchester  in  the  county  of  Durham,  but  not  of  the  surface  above  such 
mines.  These  coal  mines  were  worked  at  certain  royalties  under  a  lease 
granted  by  Mr.  Barrington  for  a  term  of  thirty-one  years  from  the 
1st  of  May,  1872.  By  his  will,  dated  the  1st  of  December,  1876,  Mr. 
Barrington  devised  his  collieries  at  Binchester  (subject  to  a  mortgage 
and  an  annuity)  to  trustees  upon  trust  for  the  Dowager  Viscountess 
Barrington  for  life  without  impeachment  of  waste,  and  after  her  death 
for  the  defendant,  the  Hon.  Francis  Bowes  Lyon,  for  life  without  im- 
peachment of  waste,  with  limitations  over.  The  testator  died  on  the. 
15th  of  January,  1877,  and  Lady  Barrington  died  on  the  23d  of  March, 
1883. 

During  her  lifetime  and  after  her  death  certain  of  the  coal  was 
got  by  the  owners  of  neighbouring  collieries  working  by  instroke  from 
their  collieries,  such  neighbouring  owners  having  inadvertently  thus 
trespassed  beyond  their  proper  boundaries.  This  working  began  in 
October,  1882 ;  the  mistake  was  discovered  in  December,  1884,  when 
the  working  was  discontinued,  and  the  neighbouring  owners  subse- 
quently paid  the  sum  of  £839.  7s.  2d.  as  compensation  for  the  coal  which 
they  had  thus  gotten.  • 

A  line  of  railway  belonging  to  the  North  Eastern  Railway  Company 
passes  across  the  surface  of  the  lands  over  a  portion  of  the  Binchester 
collieries.  In  the  month  of  June,  1884,  the  lessees  of  those  collieries 
gave  notice  to  the  railway  company  that  they  were  desirous  of  working 
and  taking  away  the  coal  lying  under  and  adjoining  a  portion  of  the 
railway.  The  company  gave  a  counter-notice  that  this  coal  was  re- 
quired for  the  support  of  the  railway,  and  they  ultimately  paid  com- 
pensation moneys  for  the  coal  so  left  unvvorked,  of  which  the  sum  of 

♦2  6  Simftns,  503  (1834). 


Ch.  7)  WASTE  699. 

£136.  Os.  2d.  was  apportioned  as  being  paid  in  respect  of  the  lessor's 
interest  therein. 

This  was  an  originating  summons  taken  out  by  the  trustees  of  the 
will  for  the  purpose  of  having  the  respective  rights  of  themselves,  Mr. 
F.  B.  Lyon,  the  equitable  tenant  for  life  in  possession,  and  Viscount 
Barrington,  as  the  executor  of  Lady  Barrington,  the  late  equitable  ten- 
ant for  life,  in  these  two  sums  of  £839.  7s.  2d.  and  £136.  Os.  2d.  deter- 
mined by  the  Court. 

Kav,  J.,  after  stating  the  facts  with  reference  to  the  coal  won  by 
the  innocent  trespass  of  the  owners  of  adjoining  colHeries,  continued: 

The  question  is  to  whom  the  moneys  in  respect  of  such  trespass 
belong.  The  point  seems  to  be  completely  determined  by  authority.  No 
doubt,  if  a  tenant  for  life  who  is  impeachable  of  waste  improperly  com- 
mits waste  by  cutting  trees  or  digging  minerals,  such  trees  or  miner- 
als when  severed  become  at  once  the  property  of  the  owner  of  the  first 
estate  of  inheritance  in  esse.  Uvedall  v.  Uvedall,  2  Roll.  Abr.  119; 
Whitfield  v.  Bewit,  2  P.  Wms.  240;  Bewick  v.  Whitfield,  3  Ibid.  267. 
And  in  such  case  an  intermediate  tenant  for  life  without  impeachment 
of  waste  cannot  recover  the  proceeds  in  trover.  Pigot  v.  Bullock,  1 
Ves.  479,  484.  The  reason  for  this  seems  to  be  that  he  had  no  right 
to  the  timber  cut  before  his  estate  came  into  possession. 

The  same  law  applies  if  the  timber  be  severed  by  the  act  of  God, 
as  by  tempest,  or  by  a  trespasser.    See  Bewick  v.  Whitfield. 

On  the  other  hand,  if  the  severance  be  in  the  lifetime  of  a  tenant 
for  life  who  is  unimpeachable  of  waste  the  severed  portion  of  the  in- 
heritance belongs  to  such  tenant  for  life.  In  an  Anonymous  Case  in 
Moseley,  page  238,  the  Master  of  the  Rolls  stated :  "It  is  now  settled 
at  law  that  if  a  stranger  cut  down  timber,  or  commit  any  other  waste, 
it  belongs  to  the  tenant  for  life,  who  is  dispunishable  of  waste,  and  not 
to  the  remainderman  in  tail,  or  in  fee."  This  was  followed  by  Lord 
Chief  Justice  Mansfield  in  Pyne  v.  Dor,  1  T.  R.  55.  56,  who  said,  "that 
a  tenant  for  life  without  impeachment  of  waste,  has  a  right  to  the 
trees  the  moment  they  are  cut  down." 

And  in  Bagot  v.  Bagot,  32  Beav.  509,  and  on  appeal  33  L.  J.  (Ch.) 
122,  note,  the  law  as  to  timber  and  minerals  is  treated  as  being  precise- 
ly identical. 

I  am,  therefore,  of  opinion  that  the  proceeds  of  the  minerals  worked 
during  the  respective  lifetimes  of  Lady  Barrington  and  the  defendant 
belong  to  her  estate  and  to  the  defendant  respectively. 

Another  question  arises  thus :  A  railway  belonging  to  the  North 
Eastern  Railway  Company  pa'sses  over  a  portion  of  the  mine.  In 
June,  1884,  the  lessees  gave  to  the  railway  company  notice  that  they 
were  desirous  of  working  the  coal  lying  under  and  adjoining  a  portion 
of  the  railway.  A  counter-notice  was  given,  and  eventually  a  compen- 
sation to  be  paid  by  the  railway  company  was  assessed  at  £514.  17s. 
lid.,  of  which  the  lessor's  proportion  was  to  be  £136.  Os.  2d. 

I  have  to  determine  under  the  74th  section  of  the  Lands  Clauses  Act 


700  RIGHTS   IN  THE  LAND  OF  ANOTHER  (Part  2 

who  is  entitled  to  the  latter  sum.  I  quite  agree  that  under  that  section 
it  is  the  duty  of  the  Court  to  consider  all  the  circumstances,  and  if  the 
coal  for  which  compensation  was  thus  received  was  of  such  an  extent 
that  by  no  possibihty  it  could  be  gotten  during  the  lifetime  of  the  ex- 
isting tenant  for  life  it  seems  to  me  that  might  be  a  circumstance 
which  the  Court  might  have  to  regard  in  determining  the  relative  rights 
of  the  tenant  for  life  and  the  remainderman;  but  nothing  of  that  kind 
occurs  here,  and  I  am  of  opinion  that  in  this  case  the  tenant  for  Hfe  is 
entitled  to  the  il36.  Os.  2d.,  being  that  part  of  the  compensation  which 
is  allotted  to  the  lessor. 


Ch.  8)  PUBLIC   RIGHTS  701 

CHAPTER  VIII 
PUBLIC  RIGHTS 


SECTION  1.— STREAMS 


BROWN  V.  CHADBOURNE. 
(Supreme  Judicial  Court  of  Maine,  1849.    31  Me.  9,  50  Am.  Dec.  641.) 

Case  for  maintaining  a  dam  across  Little  river,  and  thereby  obstruct- 
ing the  passage  of  the  plaintiff's  logs.  It  is  a  fresh  water  river,  three 
miles  long,  flowing  from  Hoyden's  lake  to  tide  water.  Its  width  varies 
from  seven  or  eight  feet  to  three  or  four  rods.  The  defendant  owns 
land  on  both  sides  of  the  river,  and  has  a  dam  and  mills  there,  and  a 
large  quantity  of  his  logs  were  resting  upon  the  dam.  The  plaintiff 
had  a  quantity  of  logs  in  the  river,  for  the  purpose  of  being  driven  to 
his  mill,  below  the  defendant's  dam.  But  they  were  prevented  from 
passing,  by  means  of  the  mass  of  the  defendant's  logs  above  his  dam. 
The  defendant  was  requested  to  remove  the  obstruction,  or  provide 
some  passage  way  for  the  plaintiff's  logs,  but  declined  to  do  so,  insist- 
ing that  the  plaintiff  had  no  right  to  drive  logs  on  that  part  of  the 
stream,  and  forbidding  him  to  drive  them.  The  plaintiff  thereupon 
boomed  the  defendant's  logs,  and  opened  and  repaired  some  old  sluice 
ways,  belonging  to  the  defendant,  around  the  dam,  and  drove  his  logs 
through  the  same. 

To  recover  for  the  hindrances  and  expenses  in  getting  his  logs  by 
the  dam,  the  plaintiff  brings  his  suit. 

The  defendant  contended  that,  at  the  place  where  his  lands  lay,  the 
river  is  wholly  his  property ;  that  the  public  have  no  right  of  passing 
or  using  it,  and  that  the  plaintiff  had  no  right  to  run  logs  there.    *    *    * 

Wells,  J.^  This  is  an  action  on  the  case  for  erecting  and  main- 
taining a  dam  across  a  stream,  called  Little  river,  and  obstructing  the 
passage  of  the  water,  and  the  plaintiff's  logs. 

The  river  is  about  three  miles  in  length  and  runs  from  Boyden's  lake 
to  the  tide  waters.  It  varies  in  its  width,  from  seven  or  eight  feet,  to 
three  or  four  rods,  and  it  has  been  used  many  years  for  floating  logs 
and  rafts,  and  sometimes  boats.  Within  twenty  years,  several  dams 
and  mills  have  been  erected  upon  it. 

The  plaintiff  disclaimed  the  right  to  recover  upon  the  ground  of 

1  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


702  RIGHTS  IN  THE   LAND  OF  ANOTHER  (Part  2 

prescription  or  user,  but  claimed  it  because  the  stream  was  a  public 
one  in  its  natural  state. 

The  jury  were  instructed  that,  it  being  a  fresh  water  stream,  the 
presumption  is  that  it  is  private  property,  and  the  burden  is  on  the 
plaintiff  to  establish  the  contrary,  by  satisfactory  proof,  that  it  is  a 
navigable  or  floatable  river,  and  in  its  natural  condition  capable  of  be- 
ing used  for  running  logs. 

The  rule  of  the  common  law,  that  riparian  proprietors  own  to  the 
thread  of  fresh  water  rivers,  has  been  adopted  in  this  and  many  other 
States  of  the  Union.  Berry  v.  Carle,  3  Greenl.  269 ;  Spring  v.  Russell 
et  al.,  7  Greenl.  273. 

The  first  question  that  arises  is,  it  being  conceded  that  the  bed  of 
the  river  belongs  to  the  owners  of  the  land  on  either  side,  can  a  right 
to  the  use  of  its  waters  be  obtained,  unless  that  use  has  been  continued 
twenty  years,  the  ordinary  length  of  time  for  the  acquisition  of  an 
easement?     *     *     * 

If  a  stream  could  be  subject  to  public  servitude  by  long  use  only, 
many  large  rivers  in  newly  settled  States,  and  some  in  the  interior  of 
this  State,  would  be  altogether  under  the  control  and  dominion  of  the 
owners  of  their  beds,  and  the  community  would  be  deprived  of  the  use 
of  those  rivers  which  nature  has  plainly  declared  to  be  public  highways. 
The  true  test,  therefore,  to  be  applied  in  such  cases,  is  whether  a  stream 
is  inherently  and  in  its  nature  capable  of  being  used  for  the  purposes 
of  commerce,  for  the  floating  of  vessels,  boats,  rafts  or  logs.  When  a 
stream  possesses  such  a  character,  then  the  easement  exists,  leaving  to 
the  owners  of  the  bed  all  other  modes  of  use  not  inconsistent  with 
it.  For  in  this  State,  the  rights  of  public  use  have  never  been  carried 
so  far  as  to  place  fresh  \vater  streams  on  the  same  ground  as  those  in 
which  the  tide  ebbs  and  flows,  and  which  alone  are  considered  strictly 
navigable  at  common  law,  and  to  exclude  the  owners  of  the  banks  and 
beds  from  all  property  in  them.  In  some  of  the  States  of  the  Union 
such  a  rule  has  been  established  by  judicial  decisions,  and  in  others 
by  legislative  acts.^ 

2  "Navigation  was,  from  the  first  settlement  of  the  province,  an  inherent 
and  paramount  right  of  the  people.  But  we  did  not  retain  the  common- 
law  definition  of  navigable  streams.  At  common  law.  those  rivers  only  are 
called  navigable  in  which  the  tide  ebbs  and  flows.  All  rivers  entirely  above 
the  influence  of  the  tide,  if  they  are  so  large  as  to  admit  navigation,  and 
to  be  of  public  use  for  the  passage  of  vessels,  boats,  etc.,  may  be,  as  well 
as  those  which  ebb  and  flow,  under  the  servitude  of  the  Jsublic  interest,  and 
are  used  as  public  highways  by  water.  'There  be  some  streams  or  rivers,' 
says  Lord  Hale,  'that  are  private  not  only  in  property  or  ownership,  but 
also  in  use,  as  little  streams  and  rivers  that  are  not  a  common  passage 
for  the  lung's  people.  Again,  there  be  other  rivers,  as  well  fresh  as  salt, 
that  are  of  common  or  public  use  for  the  carriage  of  boats  and  lighters;  and 
these,  whether  they  are  fresh  or  -salt,  whether  they  flow  and  reflow  or  not, 
are  prima  facie,  publici  juris,  common  highways  for  man,  goods,  or  both, 
from  one  inland  town  or  another."  Hargrave's  Tracts,  De  Jure  Maris,  c.  '6. 
The  common-law  definition  of  navigable  rivers  affects,  therefore,  rather  the 
proprietorship  in  the  soil  or  bed  of  the  river  than  the  right  of  navigation. 


Ch.  8)  -        PUBLIC  RIGHTS  703 

It  is  contended,  that  to  show  Little  river  is  pubhc,  it  is  not  enough 
to  prove  that  logs  may  be  floated  down  at  certain  seasons  of  the  year, 
when  it  is  affected  by  a  freshet,  but  that  it  should  have  that  capacity 
in  its  natural  and  ordinary  state,  at  all  seasons  of  the  year. 

In  the  test  which  has  been  mentioned,  to  determine  whether  a  stream 
should  be  considered  public,  none  of  the  authorities,  from  which  it  is 
derived,  requires  the  stream  to  possess  the  quality  of  being  capable  of 
use  during  the  whole  year.  A  distinguishing  criterion  consists  in  its 
fitness  to  answer  the  wants  of  those  whose  business  require  its  use. 
Its  perfect  adaptation  to  such  use  may  not  exist  at  all  times,  although 
the  right  to  it  may  continue  and  be  exercised  whenever  an  opportunity 
occurs.  In  many  rivers  where  the  tide  ebbs  and  flows,  the  public 
are  deprived  of  their  use  for  navigation  during  the  reflux  of  their 
waters.  A  way  over  which  one  has  a  right  to  pass,  may  be  periodi- 
cally covered  with  water.  In  high  northern  latitudes,  most  fresh  wa- 
ter rivers  are  frozen  over  during  several  months  of  the  year.  Even 
some  tide  waters  are  incapable  of  any  beneficial  use  for  purposes  of 
commerce   in  the   season  of   winter,   owing  to  the  accumulation   of 

I  f*^  2|C  3|C  ^ 

Most  of  the  great  rivers  of  this  State,  in  some  portions  of  their 
passage,  are  so  much  impeded  by  rocks,  falls  and  other  obstructions, 
that  logs  cannot  be  floated  in  them  any  great  distance,  at  what  might 
be  called  an  ordinary  state  of  water.  It  is  only  in  the  spring  and  fall, 
and  occasionally  at  other  times,  when  their  channels  are  filled  with 
water,  that  they  are  capable  of  floating  timber  to  market.  They  gen- 
erally remain  in  this  condition  a  sufficient  length  of  time  to  answer 
the  purposes  of  a  common  highway,  and  their  fitness  and  character 
as  such  cannot  be  destroyed  because  they  cannot  be  used  in  their  or- 
dinary state. 

A  test  so  rigid  and  severe  as  that  required  by  the  instruction  re- 
quested, would  annihilate  the  public  character  of  all  our  fresh  rivers, 
for  many  miles  in  their  course,  from  their  sources  towards  the  ocean. 
The  timber  floated  upon  our  waters  to  market  is  of  great  value,  and 
neither  the  law  nor  the  public  policy  requires  the  adoption  of  a  rule 
which  would  so  greatly  limit  their  use  for  that  purpose. 

This  was  secured  to  the  public  in  all  streams  competent  to  sustain  It,  wheth- 
er they  were,  leg:ally  spealvinc,  navigable  or  were  not.  But  in  Pennsyl- 
vania we  have  followed  the  civil-law  definition  of  navigable  rivers,  rather 
than  that  of  the  common  law.  and  we  hold  as  navigable  not  only  those 
streams  which  are  subject  to  tides,  but  all  rivers  capable  of  being  navigated ; 
that  is,  navigable  in  the  common  sense  of  the  term.  Instead  of  granting 
the  soil  usque  ad  fllum,  we  have  bounded  our  grants  at  low  water  on  all 
such  rivers,  and  have  retained,  as  eminent  domain,  for  the  use  of  ail  citi- 
zens, whatever  of  soil  and  water  were  found  between  the  lines  that  de- 
scribe the  low  water.  In  this  we  have  departed  not  only  from  the  common 
law  of  England,  but  from  the  law  of  most,  though  not  all  our  sister  states." 
Woodward.  .T.,  in  Flanagan  v.  City  of  Philadeli)hia.  42  Pa.  L'19,  229  (1S02). 
See,  also,  McManus  v.  Carmichael,  3  Iowa,  1   (IfcluU). 


704  RIGHTS  IN  THE   LAND   OF  ANOTHER  (Part  2 

The  right  to  the  use  of  the  stream  in  question  must  prevail,  when- 
ever it  may  be  exercised  at  any  state  of  the  water. 

Another  instruction  requested  to  be  given  was,  that  "the  plaintiff 
has  no  right  to  use  the  banks  of  this  stream  for  driving  logs,  and  if 
such  use  is  necessary  for  driving  logs,  the  plaintiff  has  no  right  to 
drive  this  stream." 

This  request  is  manifestly  too  broad,  and  could  not  with  propriety 
be  given.  When  the  stream  overflows  its  banks,  it  carries  some  of  the 
timber  with  it,  and  when  it  subsides,  the  timber  is  left  upon  the  up- 
lands. But  in  such  cases,  the  timber  is  not  lost  to  its  owners,  who 
have  a  right  by  our  law  to  enter  upon  the  uplands  and  remove  it.  This 
subject  has  been  regulated  by  the  statute  (chapter  67,  §  11),  by  which 
the  owners  of  timber  may  enter  upon  the  land  and  remove  it  within  a 
certain  time,  by  tendering  to  the  owner  or  occupier  of  the  land  a  rea- 
sonable compensation  for  his  damages.  The  banks  of  the  stream  may 
therefore  be  used  for  driving  logs. 

No  request  was  made  to  instruct  the  jury,  that  if  the  stream  was 
incapable  of  being  used,  without  traveling  upon  its  banks  to  propel 
the  logs,  there  could  be  no  public  servitude  in  it. 

The  instruction  given  to  the  jury  was,  "That  if  it  was  necessary 
to  go  on  the  banks  more  or  less,  for  the  purpose  of  driving  logs  in 
Little  river,  that  fact  would  not  take  from  the  stream  its  public  char- 
acter, if  they  found  it  capable  in  other  respects  of  being  used  as  a  pub- 
lic stream."  It  belonged  to  the  jury  to  determine  whether  the  river 
possessed  those  requisites,  which  would  give  it  the  character  of  the 
public  stream,  and  if  they  found  it  to  be  so,  it  could  not  be  deprived 
of  that  character  by  the  acts  of  those  who  might  use  it.  In  narrow 
places  it  might  at  times  be  blocked  up,  or  it  might,  as  has  been  stated, 
overflow.  The  necessity  of  going  upon  the  banks  in  such  instances 
to  effect  a  floating  of  the  logs  would  not  prevent  the  river  from  be- 
ing public.  The  inquiry  related  to  the  capacity  of  the  river,  and  that 
could  not  be  altogether  decided  by  what  those  using  it  might  find 
necessary  at  times  to  do.  Some  might  find  it  absolutely  necessary  in 
their  mode  of  driving  logs  to  commit  trespasses  on  the  adjoining  lands, 
but  their  unlawful  acts  could  not  affect  the  stream,  if  it  was  really  and 
intrinsically  capable  of  public  use. 

If  the  plaintiff  and  others  were  in  the  habit  of  going  upon  the  banks 
of  Little  river  to  drive  their  logs,  it  does  not  appear  but  that  they 
might  have  confined  themselves  to  its  waters,  though  it  might  be  more 
inconvenient  for  them  so  to  have  done.  Their  want  of  care  in  the  use 
of  the  river,  creating  a  necessity  to  commit  trespasses  to  relieve  their 
property,  would  not  prevent  it  from  being  public  nor  justify  the  de- 
fendant in  obstructing  it.  They  would  be  responsible  in  damages  for 
any  trespasses  committed.' 

8  See  Hooper  v.  Hobson,  57  Me.  273,  99  Am.  Dec.  769  (1809) ;  Carter  v. 
Thurston,  58  N.  H.  104,  42  Am.  Rep.  584  (1877) ;  Haines  v.  Hall,  17  Or.  165, 
20  Pac.  831,  3  L.  R.  A.  609  (ISSS) ;  Olson  v.  Merrill.  42  Wis.  203  (1877). 


Ch.  8)  PUBLIC   RIGHTS  705 

The  public  are  not  entitled  to  tow  on  the  banks  of  ancient  navigable 
rivers,  at  common  law.  Ball  v.  Herbert,  3  T.  R.  253.  And  where  a 
river  cannot  be  used  without  towing,  or  going  upon  its  banks  to  propel 
what  is  floating,  such  fact  would  evince  its  want  of  capacity,  in  itself, 
for  public  use.  > 

Sometimes  the  flow  of  rivers  is  broken  by  cataracts  and  falls,  while 
in  most  of  tlieir  course,  there  is  a  smooth  current,  and  they  are  of 
great  utility  in  the  transportation  of  property.  Where  such .  obstruc- 
tions exist  to  so  great  extent,  as  to  require  the  use  of  the  shores,  to 
carry  property  by  them,  though  in  those  places  they  might  not  have  a 
public  character,  yet  for  many  miles  above  and  below  them,  they  might 
be  capable  of  a  beneficial  use  for  trade  and  commerce,  and  thereby  be 
public.  These  obstructions  may  occur  at  long  or  short  intervals,  leav- 
ing other  portions  of  the  streams  clearly  public. 

It  is  further  contended  by  the  defendant,  that  if  the  dam  was  an 
unlawful  obstruction  the  plaintiff  had  no  right  to  run  his  logs  through 
the  defendant's  sluice,  built  on  his  land,  and  recover  damages  for  re- 
pairing it,  although  such  course  would  be  less  detrimental  than  the 
destruction  of  the  dam,  but  that  he  should  have  cut  away  tlie  defend- 
ant's dam. 

If  a  man  has  a  right  of  way  over  another's  land,  unless  tlie  owner 
of  the  land  is  bound  by  prescription  or  his  own  grant  to  repair  the 
way,  he  cannot  justify  going  over  the  adjoining  land,  when  the  way  is 
impassable  by  the  overflowing  of  a  river,  but  if  public  highways  are  out 
of  repair  or  impassable,  as  by  a  flood,  there  is  a  temporary  right  of 
way  over  the  adjoining  land.    2  Black.  Com.  36;  3  Kent's  Com.  424. 

Those  obstructions,  which  prevent  a  passage  while  they  remain,  are 
insurmountable. 

It  is  said  by  Buller,  J.,  in  Ball  v.  Herbert,  "that  if  a  river  should  hap- 
pen to  be  choked  up  by  mud,  thlat  would  not  give  the  public  a  right 
to  cut  another  passage  through  the  adjoining  lands  "  The  right  of 
ways  is  in  the  waters,  and  the  defendant  had  no  authority  to  prevent 
its  exercise.  He  could,  by  law,  erect  and  continue  his  dam  and  mills, 
but  was  bound  to  provide  a  way  of  passage  fot  the  plain-tiff's  logs. 
He  obstructed  the  river  improperly  by  his  dam  and  logs.  The  plain- 
tiff must  either  have  left  his  property  and  lost  its  whole  value,  car- 
ried it  by  the  dam,  repaired  the  sluice  and  run  the  logs  through  it,  or 
have  removed  such  portion  of  the  dam,  as  would  have  afforded  a  pas- 
sage. He  adopted  that  course,  which  was  least  injurious  to  the  de- 
fendant. 

The  plaintiff  would  have  had  the  right  to  enter  upon  the  defendant's 
land  to  remove  tlie  obstruction.  Colburn  v.  Richards,  13  Mass.  420,  7 
Am.  Dec.  160;   Inhabitants  of  Arundel  v.  McCulloch,  10  Mass.  70. 

The  plaintiff  might  not  be  bound  to  repair  the  sluice,  but  having 
done  so  to  obviate  the  difiiculty  created  by  the  defendant,  there  does 
not  appear  to  be  any  reason,  why  he  should  be  held  to  have  taken 
BiG.RiGUTS — 45 


706  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

that  course,  which  would  have  produced  a  greater  injury  to  the  de- 
fendant. Miller  v.  Mariner's  Church,  7  Greenl.  51,  20  Am.  Dec. 
341.       *     *     * 

Both  the  motion  for  a  new  trial  and  the  exceptions  are  overruled, 
and  there  must  be  judgment  on  the  verdict.* 


THUNDER  BAY  RIVER  BOOMING  CO.  v.  SPEECHLY  et  al. 

(Supreme  Court   of  Michigan,   1S75.     31   Mich.  336,   18  Am.   Kep.   184.) 

[The  plaintiffs  owned  and  operated  a  sawmill  on  Thunder  Bay 
river.  The  mill  was  run  by  water  power  furnished  by  a  dam  on  the 
river.  The  defendants  owned  a  millsite  and  dam  five  miles  higher 
up  the  river,  but  were  chiefly  engaged  in  floating  lumber  down  the 
river.  Between  the  defendants'  and  the  plaintiffs'  dams  were  shallows. 
After  June  the  natural  flow  of  the  river  was  not  sufficiently  great  to 
carry  logs  over  these  shallows.  In  order  to  get  a  sufficient  head  of 
water  for  this  purpose  the  defendants  had  been  in  the  habit  of  rais- 
ing the  height  of  the  dam  by  superstructures  until  they  accumulated  a 
large  head  of  water  and  then  letting  it  out  suddenly.  The  result  was 
that  the  plaintiff's  mill  was  first  deprived  of  a  sufficient  head  of  wa- 
ter to  continue  operations,  and  then  so  flooded  with  water  that  the 

4 Ace:  Moore  v.  Sanborne,  2  Mich.  519,  59  Am.  Dec.  209  (1853);  Smith  v. 
Fonda,  64  Miss.  551,  1  South.  757  (1886) ;  Commissioners  of  Burke  Countv 
V.  Catawba  Lumber  Co.,  116  N.  C.  731,  21  S.  E.  941,  47  Am.  St.  Rep.  829 
(1895). 

"The  precise  character  of  this  stream  is  not  stated,  nor  does  it  appear 
anywhere  in  the  record.  *  *  *  We  are  led  to  infer,  from  what  is  stated, 
that  it  is  an  inconsiderable  stream,  nearly  or  wholly  dry  in  the  summer 
season,  and  carrying  a  volume  of  water  sufficiently  powerful  to  float  logs 
or  rafts  only  in  seasons  of  freshets,  and  then  for  a  few  days  or  weeks  only. 
"*  *  *  The  principle  is  distinctly  asserted  [in  Brown  v.  Chadbourne]  that 
the  public  have  the  right  to  the  free  use  of  all  streams  which  are  suscpptible 
of  any  valuable  floatage.  And  to  this  extent  is  the  claim  of  the  defendant 
in  error.  Pie  claims,  if  Big  creek,  which,  from  its  mouth  to  its  source,  is 
private  property,  bought  of  the  United  States  and  paid  for,  and  which  may 
exhibit  for  the  greater  portion  of  the  year  but  a  dry  bed  of  gravel  and 
sand,  and  which  has  teen  crossed  by  fences  and  bridges,  and  occupied  by 
other  structures  reared  by  the  owners,  is,  notwithstanding,  -when  a  freshet 
occurs  of  one  week's  duration,  subject  to  be  entered  upon  by  the  public, 
and  to  be  appropriated  to  floating  logs,  to  the  destruction  of  fences,  bridges 
or  other  necessary  structures,  and  in  defiance  of  the  proprietors  of  tlie  same. 
We  cannot  sanction  a  doctrine  fraught  in  its  application  with  sucli  conse- 
quences. However  necessary  it  may  be  in  the  great  lumbering  states  of 
Maine  and  Michigan,  that  private  rights  should  yield  to  the  prevailing  in- 
terest, no  such  necessity  exists  in  this  state,  and  we  shall  be  careful  that 
the  rights  of  its  citizens  shall  not  be  wrongfully  invaded  upon  such  pre- 
tences as  are  set  forth  in  this  record,  and  sustained  by  such  considerations 
as  influenced  the  judgments  of  the  courts  whose  opinions  we  have  con.sid- 
ered."  Breese,  J.,  in  Hubbard  v.  Bell,  54  111.  110,  114,  118,  5  Am.  Rep.  98 
(1870). 

See,  also.  Lewis  v.  Coffee  County,  77  Ala.  190.  54  Am.  Rep.  55  (1884); 
Morgan  v.  King,  35  N.  Y.  454,  91  Am.  Dec.  58   (1866). 


Ch.  S)  ^  "     PUBLIC    RIGHTS  70T 

wheels  would  not  work,  and  the  plaintiff  was  forced  to  close  his  mill. 
This  action  is  brought  to  recover  the  damages  so  caused.] 

CooLEY,  J.' .[after  stating  the"  foregoing  facts:]  *  *  *  This 
statement  will  be  sufficient  to  show  the  bearing  of  the  legal  questions 
presented  in  the  court  below.  That  court  was  requested  to  charge 
the  jury,  that  defendants  had  a  right  to  use  the  water  of  the  river  to 
lloat  logs,  and  if  there  was  an  insufficient  supply  to  float  logs  during 
the  months  of  June,  July,  and  August,  1872.  then  defendants  had  a 
right  to  raise  a  head  of  water  at  the  Trowbridge  dam,  to  assist  in  run- 
ning the  logs  on  the  rapids,  and  if  they  detained  the  water  no  longer 
than  was  necessary  for  the  proper  enjoyment  of  that  right,  then  plain- 
tiffs were  not  entitled  to  recover.  This  request  was  refused,  and  the 
court  on  the  contrary  instructed  the  jury,  that  the  plaintiffs  had  a  right 
as  riparian  proprietors,  to  have  the  water  of  the  river  flow  into  and 
through  their  pond  in  its  usual  and  ordinary  mode  of  flowing,  and 
that  any  detention  of  water  by  defendants  for  the  sole  purpose  of  se- 
curing a  flood,  in  such  a  manner  that  it  could  not  be  used  by  the 
plaintiffs  in  the  operation  of  their  mill,  was  unreasonable  and  unlaw- 
ful as  to  them,  and  entitled  them  to  compensation  for  the  resulting 
damages.    The  jury  returned  a  verdict  for  the  plaintiffs. 

The  position  taken  by  the  defendants,  and  which  they  insist  upon 
here,  is,  that  Thunder  Bay  river  is  a  public  stream,  navigable  for  the 
purpose  of  floating  and  booming  logs,  and  that  any  rights  of  riparian 
proprietors  are  subservient  to  the  right  of  the  public  to  make  use  of 
the  stream  as  a  public  highway ;  that  defendants  had  a  right  to  detain 
the  water  in  the  Trowbridge  dam  to  assist  in  running  the  logs  jammed 
upon  the  rapids,  and  that  they  could  not  be  liable  for  so  doing,  pro- 
vided they  detained  the  water  no  longer  than  was  needful  for  that 
purpose,  and  exercised  their  right  reasonably,  with  a  due  regard  to  the 
rights  of  others.  And  it  is  this  claim  which  presents  the  principal  ques- 
tion for  our  consideration. 

That  Thunder  Bay  river  must  be  regarded  as  a  public  highway  for 
the  purpose  of  running  logs,  must  be  considered  as  determined  by  the 
previous  adjudication  of  this  court.  Moore  v.  Sanborne,  2  Mich.  519, 
59  Am.  Dec^  209.  But  that  case  falls  short  of  solving  the  difficulties 
presented  by  this,  for,  while  that  only  determines  that  a  stream  may 
be  public  and  navigable,  which  is  capable  of  being  used  for  floating 
logs  for  a  considerable  portion  of  the  year,  the  question  presented  by 
this  is,  whether  such  a  stream  is  to  be  considered  navigable  and  sub- 
ject to  the  ptiblic  easement  at  a  time  when,  in  its  natural  condition, 
it  is  entirely  incapable  of  being  made  use  of,  even  for  the  restricted 
navigation  which  was  held  to  be  of  common  right  in  the  case  referred 
to.  There  is  obviously  a  very  broad  distinction  between  a  stream  be- 
ing held  to  be  public  and  navigable  while  it  is  capable  of  being  used  by 
the  public  for  any  important  purpose  of  carriage  by  water,  and  the 

6  Part  of  the  opiuiou  is  omitted. 


708  RIGHTS   IN  THE   LAND   OF  ANOTHER      •  .  (Part  2 

same  stream  being  held  to  be  so  when  the  whole  capacity  for  use  is 
created  by  artificial  means,  and  by  abridging  what,  but  for  the  re- 
sort to  these  artificial  means,  would  be  the  unquestionable  rights  of 
riparian  proprietors  on  the  stream  below.     *     *     * 

The  doctrine,  then,  which  we  derive  from  the  cases  is,  that  a- stream 
may  be  a  public  highway  for  floatage  when  it  is  capable  in  its  ordinary 
and  natural  stage  in  the  seasons  of  high  water  of  valuable  public  use, 
The  inference  sought  to  be  drawn  from  it  is,  that  a  navigable  stream 
must,  in  contemplation  of  law,  be  navigable  at  all  times,  and  under  all 
circumstances ;  that  there  can  be  no  such  thing  as  a  highway  which 
is  only  open  to  the  public  use  periodically,  but  that  when  once  the  pub- 
lic character  of  the  way  is  established,  the  right  of  the  public  to  the 
easement  is  paramount  to  all  private  rights,  and  that  nothing  done  to 
facilitate  the  public  use  can  be  the  foundation  of  a  right  of  action  un- 
less in  itself  unreasonable,  when  the  due  subordination  of  private  to 
public  rights  in  the  stream  is  considered  and  properly  allowed  for.  But 
no  such  inference  is  warranted  by  the  decisions.  The  highway  they 
recognize  is  one  sui  generis,  and  in  which  the  public  rights  spring  from 
peculiar  facts.  It  is  a  public  highway  by  nature,  but  one  which  is  such 
only  periodically,  and  while  the  natural  condition  permits  of  a  public 
use.  During  that  time  the  public  right  of  floatage  and  the  private 
right  of  the  riparian  proprietors  must  each  be  exercised  with  due  con- 
sideration for  the  other,  and  any  injury  which  the  latter  receives  in 
consequence  of  a  proper  use  of  the  stream  for  floatage  he  must  sub- 
mit to  as  incident  to  his  situation  upon  navigable  waters.  Middleton 
V.  Booming  Co.,  27  Mich.  533. 

But  at  periods  when  there  is  no  highway  at  all,  there  is  no  ground 
for  asserting  a  right  to  create  a  highway  by  means  which  appropriate 
or  destroy  private  rights.  The  doctrine  that  this  may  be  done  without 
compensation  to  parties  injured  is  at  war  with  all  our  ideas  of  prop- 
erty and  of  constitutional  rights.  The  most  that  can  be  said  of  this 
stream,  during  the  seasons  of  low  water,  is,  that  it  is  capable  of  being 
made  occasionally  navigable  by  appropriating  for  the  purpose  the  wat- 
er to  the  natural  flow  of  which  the  riparian  proprietors  are  entitled. 
It  is  highly  probable,  in  view  of  the  large  interests  which  are  concern- 
ed in  the  floatage,  that  the  general  public  good  would  be  subserved  by 
so  doing,  but  this  fact  can  have  no  bearing  upon  the  legal  question. 
It  is  often  the  case  that  the  public  good  would  be  subserved  by  forc- 
ing a  public  way  through  private  possessions,  but  it  neither  should  be 
nor  can  be  done  under  any  circumstances  without  observing  the  only 
condition  on  which  it  can  be  permitted  in  constitutional  government, 
namely,  that  the  private  proprietor  be  compensated  for  the  value  which 
he  surrenders  to  the  public.  We  do  not  question  the  right  of  the  legis- 
lature to  provide  for  the  taking  of  riparian  rights  for  this  purpose,  but 
no  attempt  had  been  made  in  this  case  to  resort  to  a  legal  appropria- 
tion, and  the  reliance  of  the  booming  company  is  exclusively  upon  a 
public  right  of  navigation,  though  the  capacity  for  navigation  does  not 


Ch.  8)  '       PUBLIC   BIGHTS  709 

exist  by  nature,  is  only  created  by  artificial  means,  and  can  neither 
be  created  nor  enjoyed  without  appropriating  to  the  use  of  the  com- 
pany the  valuable  riparian  rights  which-  the  plaintiffs  acquired  by 
the  purchase  of  lands  over  which  the  stream  runs ;  this  appropriation 
without  compensation  is  no  more  admissible  than  would  be  the  taking 
of  land  for  an  ordinary  highway  or  a  railroad.  As  was  remarked  in 
Morgan  v.  King,  35  N.  Y.  460,  91  Am.  Dec.  58,  the  question  of  public 
right  in  a  case  like  this  is  to  be  decided  without  reference  to  the  effect 
which  artificial  improvements  have  had  in  the  navigable  capacity  of 
the  river ;  in  other  words,  the  public  right  is  measured  by  the  capacity 
of  the  stream  for  valuable  public  use  in  its  natural  condition;  and 
any  attempt  to  create  capacity  at  other  times  at  the  expense  of  private 
interests  can  be  justified  only  on  an  assessment  and  payment  of  com- 
pensation.    *     *     * 

The  judgment  must  be  affirmed,  with  costs.* 

Graves,  C.  J.,  and  Campbell,  J.,  concurred. 

Christiancy,  J.,  did  not  sit  in  this  case. 


COBB  V.  BENNETT. 
(Supreme  Court  of  Pennsylvania,  1874.    75  Pa.  326,  15  Am.  Rep.  752.) 

This  was  an  action  of  trespass  vi  et  armis  brought  June  20th,  1870, 
by  David  Bennett  against  David  Cobb,  master  and  agent  for  the  own- 
ers of  the  schooner  "Sarah." 

The  cause  of  action  was  that  the  defendant  wantonly  ran  his  ves- 
sel into  the  fishing-net  of  the  plaintiff  and  greatly  injured  it. 

The  case  was  tried  February  8th,  1872,  before  Lynd,  J. 

The  plaintiff  testified  that  he  was  the  lessee  of  a  fishery  on  the  New 
Jersey  side  of  the  river  Delaware  and  duly  licensed.  He  further  tes- 
tified that  on  the  17th  of  May,  1870,  he  had  his  nets  laid  out  about 
3^2  o'clock  a.  m.,  with  a  boat  with  a  light  in  it,  lying  about  200  feet 
from  low-water  mark ;  he  had  about  thirty  or  thirty-five  men  em- 
ployed. About  that  time  the  "Sarah"  was  seen  approaching  and  when 
about  400  or  500  yards  below  the  nets,  his  son  rowed  towards  the  ves- 
sel in  which  there  was  a  light,  he  heard  his  son  hail  the  vessel  to 
go  to  the  westward,  plaintiff  rowed  down  to  the  vessel  and  told  the 
captain  of  the  vessel,  that  if  he  would  "go  about"  he  would  clear  the 
nets;    he  did  not  go  about,  "he  continued  his  course  until  he  struck 

•A.  erected  a  legal  dam  on  a  stream,  leaving  a  sluiceway  as  wide  and 
with  as  much  water  as  the  original  channel.  Held,  although  tbe  river, 
because  of  the  dam,  has  a  greater  carrying  capacity,  a  person  floating  logs 
Is  entitled  to  no  more  water  at  the  dam  than  would  naturally  be  there,  had 
there  been  no  dam.  Pearson  v.  Rolfe,  76  Me.  3S0  (1884).  Compare  Volk  v. 
Eldred,  23  Wis.  410   (1868). 

See,  also,  Koopman  v.  Blodgett,  70  Mich.  610,  38  N.  W.  649,  14  Am.  St.  Rep. 
627  (1888^ 


710  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

my  net ;  he  damaged  my  net,  tore  my  lines ;  he  let  go  his  anchor  in  • 
side  the  net  on  the  fishing  grounds ;  *  *  *  he  lay  the  first  time  at 
anchor  half  an  hour.  *  *  *  j  ^-qJ^j  \^\y-^  ^q  stand  over  towards  Tin- 
icum  Island ;  he  did  so  and  then  went  about,  came  back  and  anchored 
on  our  grounds;  *  *  *  he  remained  four  hours  at  anchor  the  sec- 
ond time." 

The  plaintiff  then  testified  as  to  the  damage  which  he  had  sustained 
by  reason  of  the  vessel  injuring  his  net.  He  also  testified  that  the  de- 
fendant without  injury  to  himself  might  have  avoided  running  into 
the  net,  if  he  had  changed  the  course  of  his  vessel  after  he  had  been 
notified'.     *     *    * 

[The  verdict  was  for  the  plaintiff  and  the  defendant  took  out  a  writ 
of  error.] 

Agnew,  C.  J.''  We  discover  no  error  in  the  portions  of  the  charge 
assigned  for  error.  They  may  all  be  comprised  in  the  following  in- 
struction: "I  charge  as  a  question  of  law  he  [the  defendant]  was 
bound  to  shorten  his  tack,  if  he  could  have  thereby  avoided  the  nets, 
without  prejudice  to  the  reasonable  prosecution  of  his  voyage."  This 
was  said  in  view  of  the  facts  in  evidence  on  the  part  of  the  plaintiff, 
that  the  defendant  was  notified  of  the  position  of  the  net  of  the  plain- 
tiff; pointed  to  the  light  which  marked  that  position;  and  requested 
to  change  his  course  so  as  not  to  foul  it,  and  that  this  could  be  done 
conveniently.  The  judge  had  already  said:  "But  there  is  another 
right  in  the  river,  that  of  navigation,  which  is  superior  to  the  right  of 
fishing,  and  when  they  interfere,  that  of  fishing  must  give  way  to  the 
right  of  navigation."  He  had  also  said:  "Those  exercising  the  rights 
of  navigation  will  not  be  excused,  if  they  are  sufficiently  warned,  un- 
less they  make  a  reasonable  effort  to  avoid  them." 

Now,  surely,  it  is  not  error  to  say,  that  when  the  mariner  is  warned 
of  his  approach  toward  the  net  of  the  fisherman,  he  should  change 
the  course  of  his  vessel,  if  he  can  do  so  without  prejudice  to  the  rea- 
sonable prosecution  of  his  voyage.  The  entire  point  of  the  charge  is 
contained  in  this  qualification,  and  hence  it  was  not  doing  full  jus- 
tice to  the  charge  to  omit  the  qualifying  words  in  the  assignment. 
What  would-be  a  reasonable  prosecution  of  the  voyage  would  depend 
on  the  attendant  circumstances,  and  upon  this  a  special  instruction 
might  have  been  called  for.  Without  the  qualification  there  would 
have  been  error,  for  we  must  agree  that  the  mariner  is  not  bound  to 
shorten  his  tack,  merely  because  a  net  is  stretched  across  his  course, 
A  vessel  is  entitled  to  take  her  course  in  the  navigation  of  the  river, 
and  to  hold  it  without  regard  to  the  fisherman's  net,  provided  the  mas- 
ter act  without  wantonness  or  malice,  and  do  no  unnecessary  damage. 
This  is  an  obvious  consequence  of  the  superior  right  of  navigation. 
But  this,  we  think,  was  the  very  doctrine  of  the  charge,  and  the  ex- 
ception contained  in  the  qualification  in  view  of  the  facts  in  evidence. 

^  The  statement  of  facts  is  abridged. 


Ch.  8)  PUBLIC    RIGHTS  711 

If  the  manner,  warned  of  the  position  of  the  net  and  requested  to 
chang-c  his  tack,  may  do  so  "without  prejudice  to  the  reasonable  pros- 
ecution of  his  voyage,"  can  we  say  he  is  exercising  his  superior  right 
of  navigation  justly,  and  in  the  spirit  of  the  maxim,  "sic  utere  tuo  ut 
alienum  non  lasdas,"  if,  indifferent  to  the  inferior  right,  he  recklessly 
holds  on  his  way  and  fouls  and  injures  the  fisherman's  net?  Cer- 
tainly we  cannot  say  this,  for  in  effect  it  would  be  to  say  a  fisherman 
has  no  rights  whatever;  that  being  no  right  which  another  may  dis- 
regard under  all  circumstances. 

In  view  of  the  legislation,  both  of  Pennsylvania  and  New  Jersey,' 
the  usages  of  fishing,  and  the  decisions  in  our  own  state,  tliere  is  a 
right  of  fishing  in  the  Delaware,  though  subordinate  to  the  right  of 
navigation,  which  cannot  be  unnecessarily  impeded  by  it.  .  Fisheries 
attached  to  the  riparian  ownership  are  valuable,  and  command  high 
rents.  This  subject  will  be  found  to  be  discussed  at  great  length  and 
with  much  research,  by  our  brother  Sharswood,  in  the  case  of  Tini- 
cum  Fishing  Co.  v.  Carter,  61  Pa.  21,  100  Am.  Dec.  597.  It  therefore 
needs  no  further  discussion  here.  The  right  of  fishery  is  an  acknowl- 
edged one,  though  it  is  entirely  subordinate  to  those  of  navigation, 
and  we  intend  in  this  opinion  to  lay  down  no  principles  which  would 
burden  commerce  or  restrict  the  navigator's  rights,  beyond  that  which 
his  evident  duty  to  others  would  justly  require.  Indeed,  the  question 
upon  the  charge  comes  down  to  this :  Is  it  wantonness  when  a  mari- 
ner, warned  of  the  net,  seeing  the  light  marking  its  position,  and  re- 
quested to  avoid  it,  yet,  indift'erent  to  the  interests  of  the  fisherman, 
keeps  on  his  course,  when  a  reasonable  pursuit  of  his  voyage  would 
not  be  prejudiced  by  avoiding  the  net?  Wantonness  is  reckless  sport, 
wilfully  unrestrained  action,  running  immoderately  into  excess.  If 
a  man  will  do  an  injury,  when  he  may  reasonably  avoid  doing  so,  with- 
out inconvenience  to  himself,  can  it  be  said  he  is  blameless  ?  Is  it  not 
worse  than  wantonness,  is  it  not  rather  malice,  when  he  may,  with- 
out prejudice  to  the  reasonable  enjoyment  of  his  own  right,  desist 
from  an  injury  to  another,  and  yet  will  persist  in  committing  it? 

Now,  unless  we  deny  this  proposition  we  cannot  reverse.  If  there 
were  anything  exceptional  in  the  facts^or  contradictions  in  the  evi- 
dence, it  was  in  the  power  of  the  defendant  to  ask  specific  instructions 
upon  the  precise  state  of  the  facts  as  appearing  on  either  side.  If 
by  reason  of  the  veering  of  the  wind  to  the  north-east,  the  running 
of  the  tide  with  the  course  of  the  vessel,  the  want  of  men  on  deck  at 
the  moment,  or  other  sufficient  cause,  it  would  have  been  difficult,  or 
even  unreasonably  inconvenient,  to  shorten  the  tack  of  the  vessel,  or 
change  its  course,  the  instruction  might  have  been  asked  that  in  such 
a  case  the  master  was  not  bound  to  luff  or  to  shorten  tack.  We  agree 
with  the  counsel  of  the  plaintiff  in  error,  that  the  interests  of  naviga- 
tion are  all-important  to  a  port  like  that  of  Philadelphia,  and  are  not 
required  to  give  way  to  the  minor  and  subordinate  right  of  fishing. 


712  EIGHTS   IN  THE  LAND   OF   ANOTHER  (Part  2 

But  in  the  absence  of  a  call  for  instruction  on  the  point  so  much  in- 
sisted upon  in  the  argument,  we  cannot  say  the  court  erred  in  the 
general  instructions  contained  in  the  charge.  There  was  evidence  of 
malice  sufficient  to  take  the  case  to  the  jury,  to  whom  it  belonged, 
and  not  to  the  court,  to  say  whether  the  language  used,  "to  hell  with 
your  net,"  was  a  mere  superfluity  of  maritime  civility,  or  was  indica- 
tive of  malice. 

Judgment  affirmed.® 


POLLOCK  V.  CLEVELAND  SHIP  BUILDING  CO. 

(Supreme  Court  of  Ohio,  1897.     56  Ohio  St.  655,  47  N.  E.  582.) 

[The  plaintiff  and  defendant  were  adjoining  riparian  owners  upon 
the  Cuyahoga  river,  a  navigable  stream.  The  defendant  built  and  re- 
paired boats  and  had  a  700-foot  dock  running  the  length  of  its  river 
frontage.  The  plaintiff  made  no  use  of  his  land,  and  it  was  unim- 
proved. In  repairing  vessels,  and  in  putting  tlie  boilers  and  machin- 
ery in  vessels  that  it  built,  the  defendant  made  use  of  a  derrick  erect- 
ed so  near  to  the  line  of  the  plaintiff's  property  that  as  the  vessels 

8A.  contracted  to  cut  and  float  to  a  specified  point  timber  belonging  to  B. 
He  began  cutting  operations  in  the  fall.  During  the  winter  the  defendant 
stored  in  a  river  several  hundred  thousand  feet  of  logs  of  the  preceding 
year's  cut,  so  that  they  blocked  the  mouth  of  the  tributary  river  down  which 
A.  expected  to  float  the  logs  cut  by  him.  As  a  consequence  A.  was  unable 
to  get  out  the  logs.  In  an  action  by  A.  against  the  defendant  for  the  dam- 
age so  caused,  the  court  said:  "The  defendants  had  as  much  right  as  the 
plaintiff  to  use  Moose  river  for  driving  purposes.  If  they  fairly  occupied 
the  river  flrst  with  their  logs,  they  could  claim  precedence,  and  the  plaintiff 
would  need  wait,  provided  they  used  reasonable  diligence  and  efforts  to 
propel  their  drive.  Tbey  were  under  no  obligation  to  hold  up,  and  let  the 
plaintiff  put  his  logs  in  ahead,  or  even  in  the  midst  of  their  drive.  If  the 
plaintiff  reached  the  river  later  than  the  defendants,  he  would  be  obliged 
to  wait  and  his  loss  would  be  damnum  absque  injuria.  If  the  defendants, 
in  such  case,  used  reasonable  diligence  and  efforts,  they  would  not  be  re- 
sponsible, even  though  they  made  temporary  delays  for  purposes  of  boom- 
ing, etc.  *  *  *  Temporary  delays  and  rests  may  be  justiflable  in  the  • 
driving  of  logs  if  they  are  not  unreasonable  in  time  or  place.  But  when 
parties  deliberately,  and  without  compulsion  by  nature,  select  a  particular 
portion  of  a  river  as  a  place  for  a  season's  storage  of  their  logs  and  thus 
completely  block  up  another's  entrance  into  the  common  highway,  we  think 
they  are  exceeding  this  right,  and  are  legally  liable  for  damages  thereby 
caused.  Parties  desiring  to  use  any  part  of  a  river  for  such  storage  should 
select  such  peaces  as  will  least  obstruct  others  in  tlieir  use  of  the  river. 
*  *  *  In  this  case  it  is  urged  tbat  there  was  no  other  place  where  the 
left-over  logs  could  have  been  safely  kept  during  the  winter.  It  was  per- 
haps the  most  convenient  place,  but  the  evidence  does  not  satisfy  us  that 
it  was  the  only  safe  place.  We  think  the  logs  could,  with  some  extra  care 
and  expense  perhaps,  have  been  safely  stored  where  they  would  not  have 
obstructed  the  Tom  Fletcher  stream."  Emery,  J.,  in  McPheters  v.  Moose 
River  Log  Driving  Co.,  78  Me.  329,  33.3,  5  Atl.  270  (1886). 

See,  fiu-ther,  as  to  reasonableness  in  the  use  of  the  stream,  Harold  v. 
Jones,  86  Ala.  274,  5  South.  438,  3  L.  R.  A.  406  (1888);  St.  Cloud  Water- 
Power  &  Mill  Co.  v.  Mississippi  &  K.  R.  Boom  Co.,  43  Minn.  380,  45  N.  W. 
714  (1890). 


Ch.  8)  PUBLIC    RIGHTS  713 

were  moored  it  was  frequently  necessary  to  make  them  project  25  to 
75  feet  along  the  plaintiff's  river  frontage,  and  to  carry  lines  from  their 
projecting  ends  across  the  plaintiff's  land  to  piles  in  the  defendant's 
land.  No  actual  damage  was  caused  to  the  plaintiff  by  the  defend- 
ant's acts.  The  plaintiff  frequently  requested  the  defendant  to  desist 
from  these  practices  and  after  its  repeated  refusals  brought  suit  for 
an  injunction.    The  injunction  was  denied  and  the  plaintiff  appealed.] 

Spear,  J.^  [after  stating  the  facts].  The  inquiry  presents  two  ques- 
tions: (1)  Were  the  acts  of  the  company  in  moving  vessels  in  front 
of  plaintiff's  land  for  the  purpose  of  repairs  to  old  vessels,  and  of  put- 
ting in  boilers,  engines,  and  machinery  in  new  vessels,  trespasses?  (2) 
Were  its  acts  in  carrying  lines  across  the  river  bank  of  plaintiff  tres- 
passes for  which  injunction  will  lie? 

The  right  of  ownership  to  the  center  of  the  stream  by  one  owning 
land  abutting  on  a  navigable  river  is  not  in  dispute.  It  was  declared 
by  this  court  in  Gavit  v.  Chambers,  3  Ohio,  497,  that  "he  who  owns 
the  lands  upon  both  banks  owns  the  entire  river,  subject  only  to  the 
easement  of  navigation;  and  he  who  owns  the  land  upon  one  bank 
only  owns  to  the  middle  of  the  river,  subject  to  this  same  ease- 
ment."    *     *     * 

We  now  inquire,  was  the  mooring  of  boats  by  the  company  in  the 
part  of  thte  water  of  the  river  which  is  over  plaintiff's  land,  for  the  pur- 
pose of  repairing  or  completing  such  vessels,  the  pursuit  of  a  strictly 
private  manufacturing  business  thereon,  as  is  claimed  by  plaintiff? 
Or  was  it  but  an  incident  of  navigation  and  commerce,  as  claimed  by 
defendant?  If  the  latter,  the  judgment  of  the  circuit  court  is  right  in 
this  particular,  and  as  to  this  should  be  affirmed.  If  the  former,  the 
judgment  is  wrong  and  should  be  reversed,  for,  whatever  may  be  the 
rule  elsewhere,  in  Ohio  it  is  established  that  repeated  acts  of  trespass, 
which  in  time  would  ripen  into  a  prescriptive  right,  although  the  dam- 
age for  each  trespass  is  but  nominal,  will  entitle  the  aggrieved  party  to 
an  injunction.  And  it  seems  to  be  also  established  that  the  owner  of 
the  fee  of  a  highway  may  have  trespass,  founded  upon  his  possession, 
against  a  stranger,  for  any  acts  of  trespass  committed  upon  it,  not 
justified  or  excused  under  the  public  right,  and  if  he  neglects  to  sue,  but 
submits,  adverse  possession  under  claim  of  right  would  in  time  ripen 
into  a  prescriptive  right.  Having  the  exclusive  seisin  and  possession 
of  the  soil  of  the  highway,  subject  only  to  the  easement  of  the  public, 
he  may  lose  his  right  of  seisin  and  possession  by  being  deprived  and 
barred  by  the  statute  of  limitations.  Tootle  v.  Clifton,  22  Ohio  St. 
247,  10  Am.  Rep.  732;  Washb.  Easem.  10;  Read  v.  Leeds,  19  Conn. 
182.  This  brings  us  to  the  inquiry  as  to  what  is  fairly  embraced  with- 
in the  meaning  of  the  term  "easement  of  navigation."  One  dictionary 
meaning  of  navigation  is,  "the  science  or  art  of  conducting  a  ship  from 
one  place  to  another,''  and  this  definition  is  quoted  by  plaintiff's  coun- 

»  Part  of  the  opinion  is  omitted. 


714  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

sel  as  applying  here.  Another  definition  is,  "the  science  or  art  of 
ascertaining  the  position  and  directing  the  course  of  vessels,  especial- 
ly at  sea,  by  astronomical  observations  or  calculations ;  nautical  science 
or  art."  Still  another  is,  "shipping,"  which  would  embrace  the  conduct 
of  ships  generally.  Clearly  the  term  "easement  of  navigation"  should 
not  be  construed  in  any  narrow,  scientific  sense,  but,  having  in  mind 
that  the  reservation  of  the  easement  by  the  state  is  for  the  benefit  of 
the  public  in  its  use  of  the  high^yay,  it  should  receive  a  construction  in 
harmony  with  the  nature  of  the  uses  of  the  water  by  the  public,  and 
the  objects  of  a  public  nature  to  be  accomplished  by  such  uses.  Those 
objects  relate  to  trade  and  commerce,  which  is  the  interchange  of  goods 
or  products  between  nations  -or  individuals  by  means  of  transportation, 
or,  as  applied  to  commerce  on  the  water,  by  means  of  navigation. 
"Commerce,'-  says  Chief  Justice  Marshall  in  Gibbons  v.  Ogden,  9 
Wheat.  1,  6  L.  Ed.  23,  "is  traffic,  but  it  is  something  more;  it  is  inter- 
course." Commerce,  then,  is  the  object;  navigation,  the  instrument 
or  incident.  In  other  words,  navigation  is  the  means  by  which  com- 
merce is  accomplished,  and  it  is  for  the  purpose  of  aiding  commerce 
that  navigation  is  encouraged  and  protected.  When  the  term  "ease- 
ment of  navigation"  is  used,  therefore,  it  carries  with  it  the  idea  of 
navigation  for  the  purposes  above  expressed;  so  that  whatever  re- 
lates to  commerce,  or  is  iijcident  to  it,  is  embraced  in  the  term.     *     *     * 

Vessels  cannot  be  operated  or  moved  without  getting  out  of  re- 
pair, and  hence  stopping  for  repairs  becomes  one  of  the  incidents  of 
their  use.  It  would  not  be  reasonable,  from  the  standpoint  either  of 
expense  or  convenience,  to  compel  such  vessels  to  seek  a  slip  or  a  dry- 
dock  on  every  occasion  when  repairs  are  needed, — at  last,  when  such 
repairs  can  be  made  without  interference  with  other  craft  plying  the 
same  waters,  and  without  injury  to  riparian  owners.  It  follows  from 
the  foregoing  that  the  use  made  by  defendant  of  the  waters  of  the 
Cuyahoga  river  for  the  repair  of  vessels  was  an  incident  to  the  right  of 
navigation  and  commerce,  and  hence  a  public  use  and  a  proper  use. 

The  question  of  the  right  to  moor  vessels  in  front  of  plaintiff's  prop- 
erty, outside  the  dock  line,  while  the  machinery  was  being  put  in,  pre- 
sents greater  difficulties.  The  point  is  thought  to  turn  upon  whether 
or  not  an  independent  contract  for  putting  in  such  machinery  would  be 
a  maritime  contract.  "A  ship,"  says  Mr.  Benedict  in  his  work  on  Ad- 
miralty (section  215),  "is  a  locomotive  machine  adapted  to  transporta- 
tion over  rivers,  seas,  and  oceans."  In  this  sense,  the  vessels  moored 
by  defendant,  awaiting  engines  and  boilers,  were  ships.  They  were- 
machines  upon  the  water,  would  float,  and  were  capable  of  being  mov- 
ed and  propelled  on  the  water,  and  were  so  floating  on  the  water,  and 
intended  as  aid  to  commerce.     *     *     * 

Without  taking  space  for  general  discussion,  our  conclusion  is  that 
the  work  of  placing  engine  and  boilers  into  the  vessels  of  defendant, 
as  they  lay  moored  partly  in  front  of  plaintiff's  land,  whether  done  by 
an  independent  contractor  or  by  the  defendant  itself,  was  a  maritime 


Ch.  8)  PUBLIC  RIGHTS  .735 

purpose, — an  incident  to  navigation  and  commerce,  which  the  defend- 
ant, as  one  of  the  pubHc,  had  the  right  to  pursue  in  the  legitimate  use 
of  the  highway,  so  long  as  such  use  did  not  unreasonably  impede  navi- 
gation. The  mooring  of  vessels  there,  though  they  did  overlap  in  front 
of  plaintiff's  land,  did  not  constitute  trespasses;  and  the  plaintiff,  un- 
der the  facts  found,  has  no  standing  in  a  court  of  equity  to  enjoin  such 
use.  There  was  therefore  no  error  in  the  refusal  of  the  circuit  court 
to  allow  an  injunction  as  to  this,  the  main  branch  of  the  case. 

2.  The  carrying  of  lines  across  the  river  bank  of  plaintiff  presents  ^ 
a  wholly  different  question.  Those  acts  invaded  the  real  property  of 
plaintiff,  the  title  to  which  is  not  qualified  by  any  right  in  the  public. 
It  is  absolute.  It  was  the  judgment  of  the  circuit  court  that  such  acts 
resulted  in  no  real  damage  to  plaintiff,  and  that,  by  reason  of  the  rec- 
ord in  this  case,  their  repetition,  no  matter  for  what  duration  of  time, 
could  not  ripen  into  a  right  by  prescription,  and  hence  plaintiff"  was  not 
entitled  to  any  relief.  We  are  unable  to  agree  with  this  conclusion. 
The  acts  complained  of  were  trespasses.  It  is  by  no  means  clear  that 
they  would  not,  if  pursued  long  enough,  grow  into  a  prescriptive  right. 
It  is  not  necessary  to  ascertain  this  with  positiveness.  It  is  enough 
that,  if  there  be  any  doubt,  the  risk  should  not  be  imposed  upon  the 
plaintiff.  And  it  is  no  hardship  upon  defendant  to  say  that,  if  it  needs 
to  use  plaintiff's  land,  it  can  do  as  other  people  do  in  like  circumstances, 
— obtain  a  right  to  such  use  by  negotiation.  The  very  fact  that  the 
trespasses  are  in  themselves  trifling,  and  the  damage,  if  any,  so  small 
that  suits  at  law  to  recover  would  be  impracticable,  affords  an  addition- 
al reason  for  granting  an  injunction.  As  to  this  ground  of  complaint 
the  judgment  oi  tiie  circuit  court  will  be  reversed,  and  judgment  en- 
tered for  plaintiff  in  error. 

Judgment  reversed.^** 

10 Ace:  Tliat  the  mere  projecting  over  the  boundary  line  of  a  vessel 
moored  for  loading  and  unloading  is  not  actionable:  Original  Hartlepool 
Co.  V.  Gibbs,  L.  R.  5  Ch.  D.  713  (1877).  Compare  Harrington  v.  Edwards. 
17  Wis.  5SG.  84  Am.  Dec.  768  (1S6.3) ;  Delaware  River  Steamboat  Co.  v.  Burl- 
ington &  B.  Steam  Ferry  Co.,  81  Pa.  10.3  (1876);  The  Wm.  H.  Brinsfleltl 
(D.  C.)  39  Fed.  215  (1SS9).  Ace:  That  there  is  no  right  of  mooring  to  or 
landing  on  riparian  land  of  a  third  person:  Ensminger  v.  People  ex  rel. 
Trover.  47  111.  384.  95  Am.  Dec.  495  (1868);  Bainbridge  v.  Sherlock,  29  Ind. 
3G4,  95  Am.  Dec.  644  (1868). 

A.  anchored  coal  barges  in  a  navigable  river  opposite  B.'s  land  and  on 
B.'s  side  of  the  river,  and  kept  them  there  for  over  two  years.  B.'s  land 
was  not  in  use.  Held.  B.  has  a  right  of  action  against  A.  Wall  v.  Pitts- 
burgh Harbor  Co.,  152  Pa.  427,  25  Atl.  647,  34  Am.  St.  Rep.  667  (1893). 


716  RIGHTS   IN  THE   LAND   OF  ANOTHER  (Part  2 


WILLOW  RIVER  CLUB  v.  WADE. 

(Supreme  Court  of  Wisconsin,  1898.     100  Wis,  86,  76  N.  W.  273,  42  L.  R.  A- 

305.) 

Cassoday,  C.  J.^^  This  is  an  action  for  trespass  to  recover  $20 
damages  for  taking-  fish,  commenced  in  justice  court.  The  defendant 
answered  to  the  effect  that  he  had  a  right  to  take  the  fish,  and  that  the 
title  to  land  would  come  in  question,  and  gave  the  requisite  bond, 
and  the  case  was  thereupon  transferred  to  the  circuit  court,  where 
the  cause  was  tried.  *  *  *  a^.  ^^^  ^^q^^  Qf  ^j^g  evidence  the  court 
directed  a  verdict  in  favor  of  the  defendant,  and  from  the  judgment 
entered  thereon  plaintiff  brings  this  appeal. 

The  precise  question  presented  by  the  facts  stated  is  whether  the 
defendant,  by  stepping  from  a  public  highway  into  a  boat  upon  the 
river,  and  while  floating  thereon,  catching  the  fish  in  question  from 
the  river  by  hook  and  line,  committed  a  trespass  upon  the  premises 
of  the  plaintiff.  The  proper  solution  of  the  question  depends  upon  the 
proper  determination  of  one  or  more  other  questions  discussed  at  the 
bar.  Counsel  for  the  plaintiff  is  undoubtedly  correct  in  claiming 
that  at  common  law  the  public  right  of  fishery  in  rivers  was  confined 
to  such  portions  of  the  rivers  as  were  covered  by  the  ebb  and  flow  of 
the  sea,  and  that  the  right  of  fishing  in  fresh-water  rivers  was  ex- 
clusively in  the  abutting  landowners.    *    *    * 

This  court  has  held  from  the  beginning  that  the  owners  of  the  bank 
of  a  navigable  stream  by  purchase  from  the  United  States,  even  when 
meandered,  were  presumed  to  be  such  owners  to  the  middle  of  the 
stream  in  front  of  such  purchase.    *     *     * 

Upon  the  undisputed  evidence  and  the  adjudications  mentioned,  we 
must  hold  that  the  Willow  river  is  a  pubHc  navigable  stream,  fitted  for 
useful  commerce  and  transportation  of  persons  and  property  thereon. 
Being  such,  it  necessarily  follows,  from  the  principles  of  law  stated, 
that,  notwithstanding  the  plaintiff  has  title  to  the  bed  of  the  river,  nev- 
ertheless it  holds  the  same  in  trust  for  the  use  of  the  public. 

The  question  recurs  whether  the  public  right  of  fishery  is  included 
in,  or  an  incident  of,  such  public  right  of  navigation.  In  other  words, 
has  the  plaintiff,  as  riparian  owner,  the  exclusive  right  to  take  fish 
from  the  river?  The  plaintiff  certainly  has  no  property  in  the  parti- 
cles of  water  flowing  in  the  stream,  any  more  than  it  has  in  the  air 
that  floats  over  its  land.  Its  rights  in  that  respect  are  confined  to 
tlieir  use  and  in  preserving  their  purity  while  passing..  Lawson  v. 
Mowry,  52  Wis.  234,  235,  9  N.  W.  280.  So,  the  fish  in  the  stream 
were  not  the  property  of  the  plaintiff  at  common  law,  any  more  than 
the  birds  that  flew  over  its  land.  State  v.  Roberts,  59  N.  H.  256, 
47  Am.  Rep.  199;  Ang.  Water  Courses  (7th  Ed.)  §  65a,  and  cases 
there  cited;    State  v.  Welch,  66  N.  H.  178,  28  Atl.  21, 

11  Parts  of  the  opinions  are  omitted. 


Ch.  8)  PUBLIC   RIGHTS  717 

As  indicated,  the  public  right  of  fishery  in  tidal  rivers  was  main- 
tained, at  common  law,  in  England,  before  the  use  of  steam, — when 
vessels  could  only  be  carried  up  the  river  by  the  flow  of  the  sea,  and 
down  the  river  by  the  ebb  of  the  sea, — and  consequently  when  the  ebb 
and  flow  of  the  tide  practically  measured  the  navigability  of  the  stream. 
For  the  same  reason,  the  public  should  have  the  right  to  fish  in  all  the 
public  navigable  waters  of  the  state,  including  all  public  navigable 
rivers  and  streams  of  the  state.  The  supreme  court  of  the  United 
States,  in  a  recent  case,  partially  adopting  the  language  of  the  New 
Hampshire  case  cited,  has  declared  that,  "at  common  law,  the  right  of 
fishing  in  navigable  waters  was  common  to  all.  The  taking  and  selling 
of  certain  kinds  of  fish  and  game  at  certain  seasons  of  the  year  tended 
to  the  destruction  of  the  privilege  or  right  by  the  destruction  conse- 
quent upon  the  unrestrained  exercise  of  the  right.  This  is  regarded 
as  injurious  to  the  community,  and  therefore  it  is  within  the  authority 
of  the  legislature  to  impose  restriction  and  limitation  upon  the  time 
and  manner  of  taking  fish  and  game  considered  valuable  as  articles  of 
food  or  merchandise.  For  this  purpose  fish  and  game  laws  are  en- 
acted. The  power  to  enact  such  laws  has  long  been  exercised,  and 
so  beneficially  for  the  public  that  it  ought  not  now  to  be  called  into 
question."  Lawton  v.  Steele,  152  U.  S.  138,  139,  14  Sup.  Ct.  501,  38 
h.  Ed.  385. 

In  this  state  the  legislature  has  expressly  declared  that  "all  fish  in 
the  public  waters  of  the  state  of  Wisconsin  are  hereby  declared  to  be 
the  property  of  tlie  state  and  may  be  taken  for  the  use  of  the  individual 
and  become  his  property  at  any  time  and  in  any  manner  not  prohibited 
by  the  laws  of  this  state."  Laws  ^1893,  c.  307,  §  20.  Public  naviga- 
ble streams  are  certainly  "public  waters,"  within  the  meaning  of  that 
act.  Since  the  defendant  kept  within  the  banks  of  the  river, — within 
the  limits  of  the  public  highway, — his  fishing  was  nothing  more  than 
the  exercise  of  a  right  common  to  the  public.  We  must  hold  that  the 
Willow  river  was  a  public  navigable  stream,  and  the  defendant  was 
not  guilty  of  trespass  by  going  upon  it,  as  he  did,  catching  the  fish  in 
question. 

The  judgment  of  the  circuit  court  is  affirmed.^* 

12  "The  idea  is  sometimes  entertained  that  the  right  to  pass  along  a  pub- 
lic navigable  river  carries  with  it  the  right  to  fish  in  it,  but  so  far  as  re- 
gards non-tidal  rivers  this  is  not  so.  No  lawyer  could  take  that  view.  Per- 
sons using  a  navigable  highway  no  more  acquire  thereby  a  right  to  Osh 
there  than  persons  passing  along  a  public  highway  on  land  acquire  a  right 
to  shoot  upon  it."  North,  J.,  in  Smith  v.  Andrews,  [1891]  2  Ch.  678,  695. 
Ace. :  Adams  v.  Pease,  2  Conn.  481  (1818) ;  Hooker  v.  Cummings,  20  Johns. 
(N.  Y.)  90,  11  Am.  Dec,  249  (1S22) ;  Queen  v.  Robertson,  6  Can,  S.  C.  52 
(18S2). 

There  is  no  right  of  fishing  upon  rivers  nonnavigable  in  fact.  Beach  v. 
Morgan,  67  N.  H.  529,  41  Atl.  349,  68  Am.  St.  Rep.  692  (1893);  Griffith  v. 
Holman,  23  Wash.  347,  63  Pac.  239,  54  L.  R.  A.  178,  83  Am.  St.  Rep.  821 
(1900).  So  as  to  lakes  which  are  not  connected  with  navigable  waters  and 
the  beds  of  which  are  in  private  ownership.  Albright  v.  Cortright,  64  N. 
J.  Law,  330,  45  Atl.  634,  48  L.  R.  A.  616,  81  Am.  St.  Rep.  504   (1899);  Lem- 


718  RIGHTS   IN   THE   LAND   OP   ANOTHER  (Part  2 

PlNN^Y,  J.,  dissenting. 

Marshall,  J.  I  concur  with  the  decision  of  the  court,  but  regard 
the  opinion  of  the  Chief  Justice  as  being  so  framed  as  to  lead  to  the 
beHef  that  the  common  right  of  fishing  in  navigable  streams  in  this 
state  is  a  mere  incident  to  the  right  of  navigation,  and  that  defendant 
is  not  liable  because  he  was  navigating  the  stream  in  a  boat  at  the 
time  of  the  act  complained  of ;  in  short,  that  he  was  where  he  had  a 
right  to  be  in  the  exercise  of  the  right  of  navigation,  and  therefore 
that  he  was  not  a  trespasser  upon  the  plaintiff's  lands.  In  my  judg- 
ment the  right  of  fishing  in  navigable  waters  is  common  to  all,  and 
exercisable,  so  far  as  it  can  be  done  without  trespass  on  the  banks 
thereof,  whether  the  person  exercising  such  right  be  at  the  time  nav- 
igating the  stream  in  a  boat  or  otherwise  floating  upon  the  surface  of 
the  water,  or  traveling  upon  the  bed  in  the  shallows,  or  anywhere  in 
any  manner,  between  the  lines  of  ordinary  high-water  mark.  That 
is,  that  the  common-law  doctrine  of  navigble  waters,  with  all  the  inci- 
dents and  characteristics  of  such  waters,  has  been  extended  to  in- 
clude all  streams  navigable  in  fact,  through  the  location  of  the  title  to 
the  beds  of  such  streams  in  the  state  originally  for  that  very  pur- 
pose, and  that  though  such  title,  by  force  of  state  policy,  has  passed 
from  it  to  private  ownership,  such  ownership  is  of  such  a  qualified' 
character  as  not  to  in  any  way  interfere  with  the  character  of  the 
streams  as  public  waters;  not  public  in  the  sense  of  such  rivers 
as  at  common  law  were  merely  subject  to  the  right  of  passage,  but 
public  by  the  common-law  test  of  navigability.     *     *     * 


SECTION  2.— HIGHWAYS 


GOODTITLE  ex  dem.  CHESTER  v.  ALKER  &  ELMES. 

(Court  of  King's  Bench,  1757.     1  Burr.  138.) 

[The  lessor  of  the  plaintiff  was  the  owner  of  a  parcel  of  land  over 
which  there  was  a  public  highway.  The  defendant  wrongfully  erect- 
ed a  fence  that  enclosed  part  of  this  land,  and  retained  possession  of 
this  part.  This  action  of  ejectment  was  brought  in  respect  of  the  strip 
so  enclosed.] 


beck  V.  Nye,  47  Ohio  St.  336,  24  N.  E.  686,  8  L.  R.  A.  578,  21  Am.  St.  Rep. 
828  (1890).  Compare  Beckman  v.  Kreamer,  43  111.  447,  92  Am.  Dec.  146 
(1867).  As  to  the  public  right  of  fishing  in  the  Great  Lakes,  see  Lincoln 
V.  Davis,  53  Mich.  375,  19  N.  W.  103,  51  Am.  St.  Rep.  116  (1884) ;  Sterling  v. 
Jackson,  69  Mich.  488,  37  N.  W.  845,  13  Am.  St.  Rep.  405  (1888);  Sloan  v. 
Biemiller,  34  Ohio  St.  492   (1878). 


Ch.  S)  ~  PUBLIC    RIGHTS  *  719 

Mansfield,  C.  J.  *  *  *  ^^  As  to  the  Question  "Whether  an 
ejectment  will  lie,  by  the  owner  of  the  soil,  for  land  which  is  subject 
to  passage  over  it  as  the  King's  highway?" 

1  Ro.  Abr.  392.  letter  B.  pi.  1,  2.  is  express— "That  the  King  has 
nothing  but  the  passage  for  himself  and  his  people :  but  the  freehold 
and  all  profits  belong  to  the  owner  of  the  soil."  So  do  all  the  trees 
upon  it,  and  mines  under  it  (which  may  be  extremely  valuable.)  The 
owner  may  carry  water  in  pipes  under  it.  The  owner  may  get  his 
soil  discharged  of  this  servitude  or  easement  of  a  way  over  it,  by  a 
writ  of  ad  quod  damnum. 

It  is  like  the  property  in  a  market  or  fair. 

There  is  no  reason  why  he  should  not  have  a  right  to  all  remedies  for 
the  freehold;  subject  still  indeed  to  the  servitude  or  easement.  An 
assize  would  lie,  if  he  should  be  disseised  of  it:  an  action  of  trespass 
would  lie,  for  an  injury  done  to  it. 

I  find  by  the  case  of  Selman  v.  Courtney,  Tr.  13,  14  G.  2.  that  a 
point  which  had  been  before  the  Court  of  Exchequer  in  the  case  of 
the  Dutchess  of-  Marlborough  v.  Gray,  M.  2  G.  2.  is  now  settled ;  viz. 
"That  its  being  a  highway  cannot  be  given  in  evidence  by  the  de- 
fendant, upon  the  general  issue:"  wdiich  proves  that  the  ownership  of 
the  soil  is  not  in  the  King.  I  see  no  ground  why  the  owner  of  the 
soil  may  not  bring  ejectment,  as  well  as  trespass.  It  would  be  very  in- 
convenient, to  say  that  in  this  case  he  should  have  no  specific  legal 
remedy:  and  that  his  only  relief  should  be  repeated  actions  of  dam- 
ages, for  trees  and  mines,  salt  springs,  and  other  profits  under  ground, 
'Tis  true  indeed  that  he  must  recover  the  land,  subject  to  the  way: 
but  surely  he  ought  to  have  a  specific  remedy,  to  recover  the  land  it- 
self ;  notwithstanding  its  being  subject  to  an  easement  upon  it.    *    *    * 

[Foster  and  Denison,  JJ.,  concurred.] 

Judgment  for  the  plaintiff.^* 


STACKPOLE  et  al.  v.  HEALY. 

(Supreme  Judicial  Court  of  Massachusetts,  1819.     16  Mass.  33,  8  Am.  Dec. 

121.) 

Trespass  for  breaking  and  entering  the  close  of  the  plaintiffs.  The 
declaration  contains  two  counts.  The  first  alleges  that  the  defendant 
on,  &c.  with  force  and  arms  broke  and  entered  the  close  of  the  plain- 
tiffs in  Waterville,  bounded,  &c.  and  with  cows  ate  up  consumed 
and  depastured  the  grass  and  corn  then  and  there  growing,  of  the  val- 

13  Part  of  the  opinion  is  omitted. 

i*Acc.:  Postal  Telegraph-Cable  Co.  v.  Eaton,  170  111.  513,  49  N.  E.  365, 
39  L.  R.  A.  722,  62  Am.  St.  Rep.  390  (1897).  Contra:  Cincinnati  v.  White, 
6  Pet.  431,  8  L.  Ed.  452  (1832). 

A.  went  on  a  public  highway,  the  fee  of  which  was  owned  by  B.,  and  there 
hunted.  Held,  he  may  be  indicted  under  a  statute  for  committing  "a  tres- 
pass upon  the  land  of"  B.  "by  being  thereon  in  the  pursuit  of  game."  Kex.  v. 
Pratt,  4  El.  &  Bl.  SCO  (1855). 


720  '     RIGHTS  IN  THE  LAND  OF  ANOTHER  (Part  2 

ue,  &c.  The  second  count  alleges  a  like  trespass  in  that  part  of  the 
same  close,  'over  which  the  publick  highway  runs. 

The  defendant  pleads  not  guilty  as  to  the  force,  &c.  and  as  to  the 
residue  of  the  trespass  in  the  first  count,  he  pleads  in  bar,  that  over 
and  across  the  place  in  which,  &c.  there  is,  and  at  the  said  several 
times  when,  &c.  and  before  and  ever  since  has  been  a  pubUck  high- 
way, in  and  over  every  part  of  which  he  and  all  other  the  inhabitants 
of  Waterville  have,  and  ever  since  the  same  hath  been  a  publick  high- 
way, have  had  a  right  with  their  cows,  to  pass,  repass  and  graze :  and 
at  the  said  several  times  when,  &c.  tlie  said  H.  with  his  said  cows 
were  of  right  passing,  repassing  and  grazing,  in  and  upon  the  said 
highway.  And  as  to  the  supposed  trespasses  upon  that  part  of  the 
said  close  not  covered  by  the  said  highway,  but  which  lay  contiguous 
thereto,  being  the  remaining  part  of  the  locus  in  quo,  that  just  before 
the  several  times  when,  &c.  his  said  cows,  being  of  right  on  said  high- 
way passing,  repassing  and  grazing,  without  the  consent  of  the  de- 
fendant escaped  therefrom  into  the  said  remaining  part,  through  the 
fences  of  the  plaintiffs,  which  they  were  bound  to  keep  in  good  and 
sufficient  repair,  and  which  were  not  then  in  such  repair,  but  alto- 
gether ruinous :  and  so  said  cows  escaped  through  the  default  of 
the  plaintiffs.  And  as  to  the  second  pount,  he  justifies  as  in  that  part 
of  the  former  plea  respecting  the  part  of  the  close  covered  by  the 
highway. 

The  plaintiffs  demur  generally  to  both  the  pleas  in  bar,  and  the  de- 
fendant joins  in  demurrer. 

Putnam,  J.^''  The  principal  question  intended  to  be  presented 
in  this  case  is,  whether  the  people  of  this  commonwealth  have  a  right 
to  use  the  lands  for  the  purpose  of  grazing,  which  have  been  laid  out 
as  highways.  I  hold  it  to  be  clear  that  the  publick  have  no  other  right, 
but  that  of  passing  and  repassing;  and  that  the  title  to  the  land,  and 
all  the  profits  to  be  derived  from  it,  consistently  with,  and  subject  to, 
the  right  of  way,  remain  in  the  owner  of  the  soil.  The  owner  may 
maintain  trespass  for  any  injury  to  tlie  soil,  which  is  not  incidental 
to  the  right  of  passage  acquired  by  the  people.  The  land  covered 
by  a  highway  may  be  recovered  in  ejectment.  Lord  Mansfield,  in  de- 
hvering  the  opinion  of  the  court  in  the  case  last  referred  to  cites  with 
approbation  from  1  Roll.  Abr.  392,  that  the  king  has  nothing  in  an 
highway,  but  a  passage  for  himself  and  his  people ;  but  the  freehold 
and  all  the  profits  belong  to  the  owner  of  the  soil.  His  Lordship  adds, 
"so  do  all  the  trees  upon  it,  and  the  mines  under  it,  which  may  be  ex- 
tremely valuable:"  and  Mr.  Justice  Foster  observes,  "the  owner  of 
the  soil  has  all  above  and  under  ground,  except  only  a  right  of  pas- 
sage for  the  king  and  his  people." 

This  has  been  the  settled  law,  certainly  ever  since,  the  time  of  Edw. 
4.     The  only  case,  Avhich  seemed  to  the  contrary,  was  that  of  Sir 

IB  Part  of  the  opinion  is  omitted- 


Ch.  8)  PUBLIC    RIGHTS  721 

Bouchier  Wray,  mentioned  in  the  last  cited  case,  which  Lord  Mans- 
field said  was  so  loosely  remembered,  and  so  imperfectly  reported, 
as  to  deserve  no  regard.  The  old  authorities  are  cited  by  Viner, 
Chimin  priv.  B,  and  particularly  8  Edw.  4,  9,  pi.  7,  where  this  was  held 
to  be  the  law  by  all  the  justices. 

These  principles  have  also  been  recognized  in  this  court.  In  the 
case  of  Perley  v.  Chandler,  6  Mass.  454.  4  Am.  Dec.  159,  Chief  Jus- 
tice Parsons  states  the  opinion  of  the  court,  that  every  use  to  which 
the  land  may  be  applied,  and  all  the  profits  which  may  be  derived  from 
it,  consistently  with  the  continuance  of  the  easement,  the  owner  can 
lawfully  claim.  And  in  a  late  case  it  was  held,  that  one  might  re- 
cover the  land,  subject  to  the  way,  in  a  writ  of  entry. 

It  is  not  lawful  therefore  for  the  publick  to  put  their  cattle  into 
the  highway  to  graze.  For  wherever  one  would  justify  taking  the 
property  of  another,  in  virtue  of  a  license  or  of  a  way,  he  must  plead 
and  prove  that  he  pursued  the  authority,  or  used  the  way  as  a  way, 
and  not  for  any  other  purpose.  So  in  22  Edw.  4,  8,  pi.  24,  it  was 
said  by  one  of  the  court,  that  "if  one  drive  a  herd  of  cattle  along  the 
highway,  where  trees,  or  wheat  or  any  other  kind  of  corn  is  growing, 
if  one  of  the  beasts  take  a  parcel  of  the  corn,  if  it  be  against  the  will 
of  the  driver,  he  may  well  justify;  for  the  law  will  intend  that  a  man 
cannot  govern  them  at  all  times  as  he  would :  but  if  he  permitted 
them,  or  continued  them  &c.  then  it  is  otherwise." 

In  the  case  at  bar,  the  defendant  put  his  cattle  into  the  way  to 
graze,  and  not  merely  to  pass  along  the  way.  All  the  injury,  which 
is  necessarily  done  by  the  passing,  all  the  involuntary  damages  done 
by  the  traveller,  must  be  borne  by  the  owner  of  the  soil.  But  he  is 
entitled  to  damages  for  the  excess.    *    *     * 

The  statute  of  1799,  c.  61,  allows  the  inhabitants  of  towns  to  order 
that  neat  cattle,  horses  or  horse  kind,  mules  or  asses,  shall  not  go  at 
large,  without  a  keeper,  under  a  penalty  &c.  Hence  it  was  argued,  that 
the  legislature  admit,  or  take  it  as  a  settled  custom  or  law,  that  horses 
may  be  suffered  to  go  at  large  on  the  highways,  and  of  course  feed 
upon  the  grass  there  growing. 

We  have  seen  how  clear  the  common  law  is  upon  this  subject,  and 
that  it  has  been  adopted  here.  Now  if  the  legislature  intended  such 
a  material  alteration  as  has  been  contended  for,  is  it  to  be  supposed 
that  they  would  not  have  expressed  themselves  clearly,  and  not  mere- 
ly by  doubtful  implication?  But  did  they  mean  to  touch  rights  pro- 
tected by  the  common  law  ?  I  may  ask  another  question ;  could  they 
do  so,  if  they  were  disposed,  (which  is  a  case  never  to  be  supposed,) 
without  making  compensation  to  the  owner  ?  Take  the  case  of  a  fruit 
tree  standing  in  the  road,  but  in  a  situation  to  afford  a  convenient 
shade  to  the  traveller,  an  ornament  and  not  a  nuisance  to  the  way, 
and  yielding  an  annual  profit  to  the  owner  of  the  soil.  Now  the  leg- 
islature might,  if  they  thought  it  expedient,  provide  by  law  that  for 
Big. Rights — 40 


722  RIGHTS   IX  THE   LAND   OF   ANOTHER  (Part  2 

the  future  the  soil  of  all  highways  that  should  be  laid  out  should  be 
vested  in  the  publick,  and  compensate  the  owners  accordingly.  But 
what  constitutional  right  would  they  have  to  devest  the  owners  of  the 
soil  of  rights  remaining,  in  respect  to  ways  theretofore  laid  out? 

Take  the  case  of  a  mine  under  the  way,  which  the  owner  of  the  soil 
may  profitably  and  conveniently  work,  consistently  with  the  free  pass- 
age of  the  people  over  it.  Clearly  before  the  statutes  referred  to  the 
property  remained  in  the  owner  of  the  soil.  Can  he  be  divested  with- 
out compensation?  If  the  legislature  can  divest  him  of  the  trees  and 
herbage,  I  see  no  reason  why  they  may  not  do  the  same  as  to  all  prof- 
its, and  rights,  and  property  under  the  way.  We  do  not  believe  that 
the  legislature  would  do  this,  if  they  had  the  power.  There  is  no  in- 
ducement to  it.  The  accommodation  desired  by  the  publick  is  to  pass 
and  repass  with  ease.  So  it  is  expressed  in  the  colony  law  of  1639: 
"all  country  highways  shall  be  such  as  may  be  most  easy  and  safe  for 
travellers."  The  pasturage  never  made  any  part  of  the  inducement, 
or  reason  for  laying  out  highways.  And  upon  the  discontinuance  of  a 
highway,  it  never  was  doubted  that  the  soil  belonged  to  the  former 
owner  or  his  heirs,  discharged  of  the  easement. 

Upon  consideration  of  the  whole  matter,  we  are  of  opinion  that  the 
common  law  doctrine  has  been  adopted  in  this  commonwealth,  and 
continues  unaltered  by  statute.  The  defendant  therefore  cannot  jus- 
tify turning  his  cattle  into  the  highway  for  the  purpose  of  grazing ;  he 
having  no  other  right  there  but  of  passage. 

The  remaining  question  is,  whether  the  owner  of  land,  adjoining  a 
highway,  unfenced,  may  maintain  trespass  against  one,  who  had  put 
his  cattle  into  the  highway  to  graze,  because  the  cattle  escaped  into 
the  adjoining  land,  and  there  ate  the  plaintiff's  grass.  And  we  are 
of  opinion,  on  the  authority  of  the  case  of  Dovaston  v.  Payne  before 
cited,  and  the  reason  and  law  applicable  to  the  case,  that  such  action 
may  well  be  maintained.  In  the  case  referred  to,  the  defendant  plead- 
ed that  his  cattle,  being  in  the  highway,  escaped  into  the  plaintiff's 
close  for  want  of  a  sufficient  fence.  And  it  was  held  clearly  a  bad 
plea:  for  the  defendant  ought  to  plead  and  prove  that  they  were 
passing  the  highway,  and  that  the  defendant  was  using  the  same  as  a 
highway,  and  not  otherwise.  So  is  the  pleading  in  Heme  828.  De- 
fendant said,  "he  was  driving  his  cow  along  the  highway,  from  which 
she  escaped  into  the  plaintiff's  close  for  want  of  fence;  and  that  the 
defendant  followed  her  and  drove  her  back :  and  that  the  cow  casually 
and  snatchingly,  and  against  the  will  of  the  defendant,  sparingly  did 
bite  the  grass  while  returning,"  &c. 

In  Dovaston  v.  Payne  Justice  Buller  states  the  question,  whether 
trespass  or  not,  to  depend  on  the  fact  whether  the  defendant  was  pass- 
ing or  using  the  road  as  a  highway,  or  whether  the  cattle  were  in 
the  road  as  trespassers. 

This  depends  upon  a  rule  of  the  common  law  well  settled,  that  a  man 
is  not  obliged  to  fence  against  any  cattle,  but  such  as  may  be  right- 


Ch.  8)  PUBLIC  EIGHTS  723 

fully  on  the  adjoining  close.  The  statutes  of  this  commonwealth  have 
not  altered  that  rule;  and  closes,  which  are  adjoining  the  highways, 
are  left  as  at  common  law. 

Now  the  cattle  of  the  defendant  were  not  rightfully  in  the  high- 
way for  the  purpose  of  grazing.  If  they  had  escaped  from  the  owner, 
without  any  default  on  his  part,  he  could  well  have  justified.  But  in 
such  case,  he  must  plead  that  the  beasts  were  in  his  view,  and  escaped, 
and  that  he  made  fresh  pursuit.  If  a  man  will  leave  his  land  unfenced 
against  the  highway,  he  must  submit  himself  to  bear  all  the  casual 
damages,  which  may  arise  involuntarily  on  the  part  of  travellers.  But 
those  who  use  highways  are  not  to  convert  the  right  of  passing  into 
a  right  to  take  the  herbage,  which  belongs  to  the  owner  of  the  soil. 

Defendant's  pleas  in  bar  adjudged  bad.^® 


BARBER  v.  PENLEY. 
(Chancery  Division,  1893.     [1893]  2  -Ch.   447.) 

This  was  a  motion  for  an  interlocutory  injunction,  treated  as  the 
trial  of  an  action. 

The  plaintiff  had  a  lease  for  twenty-one  years,  granted  in  August, 
1892,  of  premises  known  as  Waterloo  Chambers,  Wych  Street,  Strand, 
which  she  used  as  a  common  lodging-house  for  men  of  the  working 
classes.  The  only  access  to  her  premises  was  by  a  dobr  adjoining  the 
pit  entrance  to  the  Globe  Theatre. 

The  defendant  was  lessee  of  the  Globe  Theatre.  Shortly  before 
the  issue  of  the  writ,  he  had  commenced  the  performance  of  a  play 
called  Charley's  Aunt,  which  had  become  at  once  extremely  popular. 
The  doors  of  the  theatre  were  opened  for  the  evening  performances 
at  7:30  p.  m.,  and  crowds  of  persons  collected  every  evening  in  the 
street  outside  the  pit  entrance,  previously  to  the  opening  of  the  doors. 
The  crowd  began  to  collect  about  5  :30  p.  m.,  and,  as  the  Judge  held 
on  the  evidence  at  the  time  of  the  issue  of  the  writ,  during  the  two 
hours  previous  to  the  opening  of  the  doors,  occupied  the  pavement 

16 Ace:     Woodruff  v.  Neal,  28  Coun.  165  (IS.jO). 

For  other  users  of  the  highway  thut  constitute  a  violation  of  the  rights 
of  the  owner  of  the  soil,  see  Harrison  v.'  Rutland,  [1S93]  1  Q.  B.  142,  loiter- 
ing on  the  highway  to  prevent  the  owner's  use  of  his  own  laud ;  Hickman 
v.  Maisey,  [1900J  1  Q.  B.  752,  using  the  highway  as  an  observation  post  to 
spy  upon  the  owner;  Codman  v.  Evans,  5  Allen,  308,  81  Am.  Dec.  748  (1862), 
building  overhanging  bay  window ;  Lewis  v.  Jones,  1  ta.  336,  44  Am.  Dec. 
138  (1845),  stacking  timber.  See,  also,  People  v.  Foss,  SO  Mich.  559,  45  IS'. 
W.  480,  8  L.  R.  A.  472,  20  Am.  St.  Rep.  532  (1890) ;  State  v.  Davis,  SO  N.  U. 
351,  30  Am.  Rep.  86    (1879). 

The  question  as  to  how  far  or  under  what  circumstances  State  or  munic- 
ipal authorities  may  authorize  the  use  of  a  street  for  purposes  such  as  the 
laying  of  pipes,  erection  of  electric  light  and  other  poles,  laying  of  car 
tracks,  etc. ;  without  compensating  tlie  abutting  owner,  who  has  title  to 
the  street  is  dealt  with  in  Halls  Cases  on  Constitutional  Law,  p.  757  et  seq. 


724  RIGHTS   IN  THE   LAND   OF   ANOTHER  (Part  2 

in  front  of  the  plaintiff's  premises  in  such  way  as  to  obstruct  access 
to  them,  notwithstanding  that  poHcemen  had  been  employed  at  the 
expense  of  the  defendant  to  preserve  order. 

The  plaintiff  complained  that,  by  reason  of  such  obstruction,  her 
customers  were  impeded  in  getting  to  her  house  at  the  hour  when, 
after  their  day's  work,  they  were  in  the  habit  of  seeking  lodgings. 
The  evidence  shewed  also  that  both  parties  had  made  representations 
to  the  police  authorities,  and  that  previously  to  the  hearing  of  this  mo- 
tion additional  policemen  had  been  employed,  and  the  pavement  in 
front  of  the  premises  was  then  kept  entirely  clear.  The  motion  before 
the  Court  was  for  an  injunction  till  trial,  to  restrain  the  defendant 
from  carrying  on  the  Globe  Theatre,  so  as  (by  causing  crowds  to 
assemble  or  otherwise)  to  obstruct  the  access  to  or  egress  from  tlie 
plaintiff's  premises,  Waterloo  Chambers. 

North,  J.^'^  stated  the  nature  of  the  action,  and  continued: 

It  was  said  that  the  plaintiff  had  taken  these  premises  with  the 
knowledge  that  there  was  the  theatre  next  door,  which  is  quite  true, 
and  that  is  a  matter  which  is  deserving  of  consideration.  A  person 
who  deliberately  goes  next  door  to  a  theatre  cannot  expect  to  have 
precisely  the  same  amenities  in  Wych  Street  that  the  lessee  of  a  private 
house  in  a  street  occupied  by  private  houses  only  in  the  West  End 
would  expect;  but  still  such  a  lessee  has  a  right  to  expect  that  no 
nuisance  shall  be  committed  to  the  prejudice  of  such  person.  The 
collection  of  playgoers  in  the  street  would  to  some  extent  be  a  pub- 
lic nuisance,  if  a  nuisance  at  all ;  but  certainly  it  would  be  a  private 
nuisance  to  the  plaintiff,  in  respect  of  which,  if  proved,  the  plaintiff 
would  have  a  right  of  action. 

,  [After  considering  the  evidence  as  to  the  obstruction,  on  which  he 
considered,  that  when  the  writ  was  issued  there  was,  previously  to 
the  opening  of  the  door  of  the  theatre,  such  obstruction  as  to  render 
access  to  the  plaintiff's  premises  very  difficult,  his  Lordship  continued :] 

*  *  *  Then  there  is  another  case  in  the  same  volume — Rex  v. 
Jones,  3  Camp.  230 — where  it  was  held  to  be  an  indictable  offense  for 
a  timber  merchant  to  cut  logs  of  timber  in  the  street  adjoining  his 
timber-yard,  and  Lord  Ellenborough  said:  "If  an  unreasonable  time 
is  occupied  in  the  operation  of  delivering  beer  from  a  brewer's  dray 
into  the  cellar  of  a  publican,  this  is  certainly  a  nuisance.  A  cart  or 
waggon  may  be  unloaded  at  a  gateway;  but  this  must  be  done  with 
promptness."  Then  he  gives  other  illustrations.  Then  at  the  end, 
speaking  of  the  particular  case  before  him,  he  says :  "I  cannot  bring 
myself  to  doubt  of  the  guilt  of  the  present  defendant.  He  is  not  to 
eke  out  the  inconvenience  of  his  own  premises  by  taking  in  the  public 
highway  into  his  timber-yard;  and  if  the  street  be  narrow,  he  must 
remove  to  a  more  commodious  situation  for  carrying  on  his  business." 
*     *     *     Lord  Justice  Giffard   says  (Law   Rep.  4  Ch.   397):     "In 

17  Part  of  the  opinion  is  omitted. 


Ch.  8)  PDBLIC  EIGHTS  725 

Inchbald  v.  Robinson  the  whole  of  the  case  made  by  the  bill  is,  that 
the  circus  will  draw  together  a  great  crowd  of  disorderly  persons. 
The  evidence  in  support  of  this  allegation  is  insufficient,  and  if  an 
injunction  in  such  a  case  were  to  be  granted  and  upheld,  it  would 
prevent  the  setting  up  near  a  dwelling-house  of  any  exhibition  likely 
to  be  attended  by  a  large  number  of  people." 

It  was  said  that  this  was  an  authority  to  shew  that  the  plaintiff  would 
have  no  right  to  complain  of  the  nuisance  caused  by  persons  coming  to 
and  going  from  the  theatre ;  but,  in  my  opinion,  that  does  not  apply 
to  the  case  I  have  to  deal  with.  It  is  not  here  a  coming  to  and 
going  from  that  is  complained  of;  it  is  the  nuisance  caused  by  those 
who  intend  ultimately  to  get  into  the  theatre  collecting  in  the  street  out- 
side the  theatre  and  remaining  there,  which  is  quite  a  different  thing 
from  coming  to  or  going  from  it.  There  is  no  complaint  here  of  the 
use  of  the  theatre,  either  as  regards  persons  who  come  to  it  without 
having  to  stop  in  the  street  so  as  to  be  a  nuisance  to  the  plaintiff,  nor 
is  there  any  complaint  made  here  of  the  persons  who  are  going  away 
from  the  theatre  at  the  end  of  the  performance.  It  was  also  said 
that  there  was  a  distinction  between  outdoor  and  indoor  performances, 
that  this  case  was  an  authority  to  that  effect.  That  there  may  be  a 
distinction  in  detail  and  result  I  can  quite  understand ;  but  I  do  not 
see  where  the  distinction  in  principle  is.  If  a  defendant  does  within 
his  premises  what  causes  a  nuisance  outside,  it  does  not  matter  wheth- 
er the  nuisance  is  caused  by  what  goes  on  inside  being  actually  visible 
outside  and  so  causing  the  crowd  to  collect,  or  whether,  by  reason 
of  what  is  going  on,  or  what  is  about  to  go  on  inside,  he  causes  tlie 
crowd  to  collect.  It  seems  to  me  the  principle  of  both  is  the  same, 
though  the  application  is  somewhat  different.     *     *     * 

Then  it  is  said  that  the  defendant  could  not  prevent  a  crowd  from 
gathering,  and  that  it  was  a  police  matter.  It  does  appear  that  the 
defendant  did  from  the  first  tell  the  police  that  assistance  would  be 
necessary  to  regulate  the  crowds ;  but  I  find  that  the  plaintiff  did  that 
also,  and,  although  that  was  done,  no  such  interference  took  place 
as  prevented  the  arising  of  the  nuisance  complained  of.  I  think  the 
defendant's  own  evidence  confirms  the  plaintiff's  evidence  as  to  crowds  , 
that  collected,  because  he  himself  says  that,  although  at  half-past  five 
there  is  no  crowd  to  complain  of,  it  is  not  until  half-past  six  that  a 
large  number  of  persons  then  collect,  and  I  take  it  that  is  an  ad- 
mission that  from  that  time  onwards  at  any  rate  there  were  such  per- 
sons. As  regards  the  defendant's  suggestion  that  he  could  not  help 
it,  if  in  point  of  fact  the  nuisance  exists  which  is  caused  by  him,  not 
with  an  object  to  cause  that  nuisance,  but  by  reason  of  the  enter- 
tainment he  carries  on,  a.nd  to  which  he  invites  the  public  to  come, 
it  seems  to  me  that  it  is  a  case  in  which  either  he  must  discontinue 
his  performance  or  the  nuisance  must  be  prevented.  In  this  case  the 
police  have  taken  the  matter  into  their  control,  and  it  is  clear  from 
the  affidavit  of  the  plaintiff  in  reply  that  they  can  eft'ectually  prevent 


726  RIGHTS   IN   THE   LAND   OF   ANOTHER  (Part  2 

the  nuisance.  The  affidavit  in  reply  says  there  has  been  no  subject  of 
complaint  whatever  since  a  recent  date  subsequent  to  the  commence- 
ment of  the  action,  and  there  it  appears  that  the  police  have  taken 
control  and  have  prevented  a  nuisance  arising.  It  is  said  the  defend- 
ant ought  to  prevent  this ;  but  he  cannot  do  it — of  course  he  has  no 
control  over  the  streets,  he  cannot  put  persons  in  the  street  to  regu- 
late the  crowds,  and  one  of  the  first  things  the  police  would  do  would 
be  to  prevent  the  interference  by  other  persons  with  the  traffic  of  the 
street.  Still,  this  nuisance  did  exist,  and  in  my  opinion  the  plaintiff 
is  entitled  to  be  relieved  from  it. 

But  in  this  case  I  do  not  propose  to  grant  any  injunction.  In  the 
first  place  I  do  not  think  it  necessary;  no  injunction  is  wanted  now, 
because,  as  the  plaintiff's  own  affidavit,  to  which  I  have  just  referred, 
says,  the  nuisance  has  been  put  a  stop  to.  *  *  *  If  he  [the  de- 
fendant] had  claimed  a  right  to  obstruct  I  certainly  should  have 
granted  an  injunction.  As  he  does  not  claim  that  right,  I  do  not  think 
an  injunction  is  necessary,  and  therefore  I  do  not  propose  to  grant  it. 
Then  there  is  another  reason  why  I  should  not  do  so.  As  I  have  said, 
I  have  not  the  least  doubt  that  the  police  will  do  all  that  is  necessary; 
but,  supposing  that  there  was  a  great  fire  or  a  great  demonstration 
or  anything  else  that  caused  extraordinary  and  sudden  demand  upon 
the  services  of  the  police,  and  the  police  could  not  be  there  to  prevent 
the  crowd,  and  it  did  happen  on  some  particular  occasion  that  there 
was  a  nuisance,  I  do  not  intend  to  expose  the  defendant  to  a  motion 
to  commit  by  reason  of  such  an  accidental  interference  with  the  plain- 
tiff's rights. 

The  result  is,  that  I  do  not  think  it  necessary  to  grant  an  injunc- 
tion, and  I  do  not  propose  to  do  so ;  but  in  my  opinion  the  plaintiff 
was  justified  in  bringing  the  action,  and,  therefore,  the  order  will  be: 
"It  appearing  from  the  plaintiff's  affidavit  in  reply"  (referring  to  it) 
"that  the  nuisance  has  been  discontinued,  the  Court  doth  not  think  fit 
to  make  any  order  except  that  the  plaintiff's  costs  of  the  action  shall 
be  taxed  and  paid  by  the  defendant."  ^* 


TUCKER  et  al.  v.  ELDRED  et  al. 
(Supreme  Court  of  Rhode  Island,  1860.    6  R.  I.  404.) 

Trespass  for  breaking  and  entering  the  close  of  the  plaintiffs  in 
South  Kingston,  and  cutting  down  the  trees,  wood,  timber,  and  brush- 
wood of  the  plaintiffs,  and  burying  the  same  under  the  ground. 

The  case,  which  had  been  appealed  from  the  court  of  common  pleas, 
was  tried,  under  the  general  issue  in  this  court,  at  the  February  term 

18  See  Graves  v.  Shattuck,  35  N.  H.  257,  69  Am.  Dec.  536  (1857);  Callanan 
V.  Gilraan,  107  N.  Y.  360,  14  N.  E.  264,  1  Am.  St.  Rep.  831  (1887);  Raymond 
V.  Keseberg,  84  Wis.  302,  54  N.  W.  612,  19  L.  R.  A.  643  (1893). 


Ch.  8)  PUBLIC   RIGHTS  727 

for  the  County  of  Washington,  1860,  with  a  jury,  when  it  appeared, 
that  tlie  town  of  South  Kingston,  having  laid  out  a  highway  through 
the  farm  of  the  plaintiffs,  and  having  paid  the  damages  assessed  against 
them  therefor,  under  the  statute,  the  defendants,  who  were  the  town- 
sergeant  and  his  assistants,  in  opening  and  making  the  same  through 
a  space  of  some  thirty-nine  rods  long  by  three  rods  wide  of  wood- 
land, cut  down  the  trees  of  the  plaintiffs  growing  thereon,  and  used, 
as  materials  in  building  the  road  in  the  swampy  places,  the  wood  and 
brush  so  cut  on  the  land  of  the  plaintiffs  taken  for  the  road. 

The  jury  assessed  the  plaintiffs'  damages  at  thirty  dollars;  the  ver- 
dict being,  by  agreement,  subject  to  the  opinion  of  the  court,  upon  the 
question  of  law :  Whether  trees  and  brushwood  growing  upon  land 
condemned  to  the  uses  of  a  highway,  are,  under  the  statute,  included 
in  the  condemnation  and  estimate  of  damages,  or,  when  removed  by 
the  surveyor  for  the  purpose  of  opening  and  building  the  new  high- 
way, are  to  be  left  for  the  use  of  the  owner  of  the  land? 

Brayton,  J.  The  question  submitted  to  the  determination  of  the 
court  in  this  case,  is  whether  a  surveyor  of  highways  is  justified  in 
law,  not  merely  in  cutting  and  removing  timber  standing  or  growing 
within  the  line  of  the  highway  newly  laid  out,  and  which  straitens, 
hinders,  or  incommodes  the  public  in  traveling,  but  in  using  the  tim- 
ber grown  there  in  the  construction  of  tlie  way  ? 

By  the  general  rules  of  law,  the  public  have  but  an  easement  upon 
the  land  lying  within  the  lines  of  the  highway.  Notwithstanding  the 
laying  out  of  the  highway  and  the  condemnation  of  the  land  to  the 
use  of  the  public  for  travel,  the  title  to  the  soil,  and  all  the  profits 
thereof  consistent  with  the  existence  of  the  easement,  remain  in  the 
original  owner.  He  has  a  right  to  the  freehold  and  to  all  the  profits 
which  may  be  derived  from  it,  consistently  with  the  right  of  passage 
of  the  public, — to  all  mines  beneath  the  surface,  to  all  trees,  grass,  and 
pasturage  upon  and  above  the  surface.  Goodtitle  v.  Aiken,  1  Burr. 
133;  Stevens  v.  Whistler,  11  East,  51;  Doe  v.  Wilkinson,  3  B.  &  C. 
413;  Perley  v.  Chandler,  6  Mass.  454,  4  Am.  Dec.  159;  Jackson  v. 
Hathaway,  15  Johns.  (N.  Y.)  447,  8  Am.  Dec.  263;  Gidney  v.  Earl, 
12  Wend.  (N.  Y.)  98.  Our  statutes  (ch.  43,  §  8,  ch.  44,  §  17,  of  the 
Rev.  Sts.)  provide,  that  upon  the  laying  out  and  establishment  of  a 
highway,  everything  upon  the  land  which  shall  in  any  way  straiten, 
hinder,  or  incommode  the  travel,  may  be  removed  therefrom ;  as  build- 
ings, fences,  trees,  or  other  thing  whatsoever.  This  right  the  law 
would  imply  without  the  statute ;  since  upon  the  passing  of  the  ease- 
ment to  the  public,  everything  reasonably  necessary  to  its  enjoyment 
passes  with  it. 

This  power  is  necessarily  vested  in  the  surveyor  of  highways,  who 
is  appointed  by  law  to  keep  the  way  in  repair  for  the  convenience  of 
the  public.  He,  therefore,  may  remove  the  trees,  if  they  in  any  way  in- 
terfere with  the  travel ;  but  the  right  to  remove  gives  hun  no  property 
in  them. 


728  RIGHTS  IN  THE   LAND   OP  ANOTHER  (Part  2 

There  seems  to  be  no  difference  in  this  respect,  certainly  no  material 
difference,  between  a  public  and  a  private  way.  In  the  one  case,  the 
easement  is  for  the  benefit  of  the  general  public;  in  the  other,  for 
that  of  an  individual;  but  in  neither  case  does  any  property  in  the 
land,  or  its  incidents,  pass  from  the  owner  of  the  soil;  ahd  the  in- 
dividual, in  the  one  case,  and  the  public  in  the  other,  are  to  make  and 
maintain  the  way  in  proper  condition  for  travel,  at  his  or  their  own 
expense.  If  the  way  may  be  made  cheaper  with  timber  than  with 
earth,  it  must  be  provided  by  them ;  and  if  they  will  take  that  which  is 
another's  for  this  purpose,  they  do  it  at  their  peril. 

Ii  is  said,  indeed,  that  in  the  assessment  of  damages  for  the  laying 
out,  the  use  of  the  wood  is  made  an  item  of  these  damages.  The  dam- 
ages for  which  the  statute  provides,  are,  "the  damages  which  the  own- 
ers of  the  land  shall  sustain  by  means  of  such  highway  passing  through 
their  lands;"  that  is,  the  damages  which  they  may  suffer  from  the 
right  of  the  public  continually  to  pass  over  their  lands, — the  adaptation 
of  the  soil  to  that  passage, — the  removal  of  everything  therefrom 
which  may  interfere  with  the  travel,  and  the  fact  that  they  must,  by 
such  use,  be  deprived,  to  a  great  extent,  of  the  profit  of  the  soil ; 
the  growth  of  timber  thereon  being  one  source  of  profit.  These  dam- 
ages are  necessarily  assessed  before  the  land  is  entered  upon  for  the 
purpose  of  making  the  way;  and,  therefore,  cannot  be  for  all  the  in- 
jury, necessary  or  unnecessary,  which  may  be  actually  done  by  the 
surveyor  or  other  person,  in  making  the  way,  and  opening  it  for  travel. 
The  assessment  can  only  be  for  such  damages  as  necessarily  will  be 
done  to  the  owner  of  the  land  in  order  that  the  public  might  be  enabled 
conveniently  to  pass  over  the  land.  The  use  of  the  timber  in  the  con- 
struction of  the  way  is  certainly  not  reasonably  necessary  to  the  pas- 
sage of  the  public ;  though  the  removal  of  it  from  the  path  may  be, 
and  would  be.  Until  such  necessity  ,is  shown,  no  reason  is  shown  why 
the  value  of  the  timber  should  be  an  item  of  damages  to  be  awarded 
to  the  owner  of  the  land. 

The  same  reason  is  equally  conclusive  against  the  right  of  a  sur- 
veyor of  highways,  in  the  course  of  repairing  or  amending  the  same, 
from  doing  more  in  relation  to  the  timber  growing  within  the  lines  of 
the  highway,  than  to  cut  down  and  remove  it,  so  that  it  shall  not  im- 
pede the  travel.  According  to  the  agreement,  therefore,  judgment 
must  be  entered  upon  the  verdict.^" 

19  Compare  Aurora  v.  Fox,  78  Ind.  1  (1881);  Stretch  v.  Cassopolls,  125 
Mich.  167,  84  N.  W.  51,  51  L.  R.  A.  345,  84  Am.  St.  Rep.  567  (1900) ;  Rich  v. 
Minneapolis,  37  Minn.  423,  35  N.  W.  2,  5  Am.  St.  Rep.  861  (1887);  Cole  v. 
Drew,  44  Vt.  49.  8  Am.  Rep.  363  (1871). 


Ch.  8)  PUBLIC   RIGHTS  729 

MOREY  V.  FITZGERALD. 

(Supreme  Court  of  Vermont,  1884.    56  Vt.  487,  48  Am.  Rep.  811.) 

RowELL,  J.  The  evidence  on  the  part  of  the  plaintiff  tended  to 
show  that  for  about  six  years  next  before  the  commencement  of  this 
suit,  the  defendant  was  in  the  habit  of  driving  his  horse  and  carriage 
outside  of  said  pent-road  on  to  plaintiff's  meadow,  thereby  cutting  up 
the  soil  thereof  and  trampling  down  the  grass  then  and  there  growing ; 
but  tlie  particular  times  when  said  supposed  trespasses  were  com- 
mitted were  left  wholly  indefinite.  The  defendant  justified,  for  that 
at  the  said  several  times  when,  etc.,  said  road  was  dangerous  and  im- 
passable, wherefore  he  drove  extra  viam,  as  he  lawfully  might.  The 
plaintiff's  evidence  being  thus  indefinite  as  to  the  said  times  when, 
it  was  competent,  and  indeed  necessary,  for  the  defendant  to  meet  it 
with  evidence  as  to  the  general  bad  condition  of  the  road  equally  in- 
definite as  to  time. 

The  exceptions  state  that  "there  was  no  evidence  tending  to  show 
that  the  gate  was  on  the  plaintiff's  land  except  as  herein  stated,"  but 
it  is  not  therein  stated  that  there  was  such  evidence.  In  the  charge 
the  court  say  it  does  not  conclusively  appear  that  it  was  on  plaintiff's 
land ;  but  this  cannot  be  taken  as  showing  that  there  was  evidence 
tending  to  show  that  it  was  on  his  land.  This  remark  of  the  court  is 
made  incidentally  only,  and  by  way  of  giving  a  reason  for  its  ruling 
that  plaintiff  could  not  recover  for  the  removal  of  the  gate.  Hence 
there  was  no  apparent  error  in  the  court's  refusal  to  comply  with 
plaintiff's  first  request,  nor  in  the  charge  on  the  subject-matter  thereof. 

The  court  complied  with  the  plaintiff's  seventh  request,  but  refused 
to  comply  with  his  second,  third,  fourth,  fifth,  and  sixth  requests ; 
and  the  main  question  arises  on  the  exceptions  to  such  refusal  and  to 
the  charge  in  respect  thereto. 

It  is  a  maxim  that  private  mischief  shall  be  endured  rather  than  a 
public  inconvenience.  That  regard  be  had  to  the  public  welfare,  is 
the  highest  law.  Hence,  if  a  public  highway  be  out  of  repair  and 
impassable,  a  traveller  may  lawfully  go  over  the  adjoining  land,  since 
it  is  for  the  public  good  that  there  should  be  at  all  times  free  passage 
along  the  highways  for  all  the  subjects  of  the  State.  In  such  case,  an 
interference  with  private  property  is  obviously  dictated  and  justified 
summa  necessitate,  by  the  immediate  urgency  of  the  occasion,  and  a 
due  regard  to  the  public  safety  or  convenience.  Broom  Leg.  Max.  2 ; 
Lord  Mansfield,  C.  J.,  in  Taylor  v.  Whitehead,  Dougl.  749;  Lord 
Ellenborough,  C.  J.,  in  Bullard  v.  Harrison,  4  M.  &  S.  393.  But  such 
obstruction  must  be  from  sudden  and  temporary  causes,  and  of  such 
a  character  as  to  render  the  road  founderous  and  impracticable. 

The  leading  case  in  this  country  on  the  subject  is  Campbell  v.  Race, 
7  Cush.  408,  in  which  the  highway  was  obstructed  and  rendered  im- 
passable by  snowdrifts.    But  such  a  right,  having  its  origin  in  neces- 


730  RIGHTS   IN   THE   LAND   OP   ANOTHER  (Part  2 

sity,  must  be  limited  by  the  necessity  that  creates  it,  and  does  not 
exist  from  convenience  merely,  nor  when,  by  the  exercise  of  due  care, 
after  notice  of  obstructions,  other  ways  may  be  used  and  traveling 
extra  viam  thereby  avoided.  It  is  to  be  confined  to  cases  of  necessity 
arising  from  sudden  and  recent  causes  that  have  occasioned  temporary 
and  impassable  obstructions  in  the  way. 

But  it  is  said  that  the  obstructions  in  this  case  were  not  sudden,  un- 
foreseen, and  temporary,  but  continuous,  notorious,  and  permanent; 
and  great  stress  is  laid  on  the  phrase,  "unexpected  and  unforeseen 
occurrences,"  used  by  the  court  in  Campbell  v.  Race.  But  the  ob- 
struction in  that  case  was  of  the  same  kind  as  one  of  the  obstructions 
in  this  case,  and  of  the  same  nature  as  to  being  unexpected  and  un- 
foreseen as  the  others.'  Surely,  the  formation  of  ice  or  the  occurrence 
of  a  washout  in  a  highway  is  just  as  unexpected  and  unforeseen  as  a 
snowdrift,  and  in  this  latitude  none  of  them  are  unexpected  at  cer- 
tain seasons  of  the  year,  or  unforseen  except  in  the  sense  that  the 
precise  time  of  their  visitation  cannot  be  foreknown. 

And  although  the  defendant  knew  of  the  founderous  condition  of 
the  road  before  he  attempted  to  pass  over  it,  he  was  not  thereby  de- 
prived of  the  right  he  otherwise  would  have  had  to  travel  it.  One  has 
a  right  to  travel  highways  when  he  is  not  thereunto  impelled  by 
imperious  necessity  as  well  as  when  he  is,  provided  always  that  he 
uses  them  for  the  purposes  for  which  they  are  constructed  and  main- 
tained. But  when  one  knows  that  a  highway  is  so  obstructed  as  to 
necessitate  a  divergence  therefrom  on  to  adjoining  land  in  order  to 
get  past  founderous  portions  thereof,  it  is  his  duty  to  the  adjoining 
land-owner  to  go  some  other  way  if  there  be  one  reasonably  available 
to  him,  rather  than  thus  to  deviate.  But  this  case  does  not  show  that 
there  was  another  way  available  to  the  defendant.  All  that  is  shown, 
is,  that  there  was  no  evidence  tending  to  show  that  defendant  could 
not  have  gone  some  other  way  and  thus  have  avoided  going  upon 
plaintiff's  land.  But  this  is  not  enough.  Every  reasonable  intendment 
is  to  be  made  in'favor  of  the  correctness  of  the  judgment  below ;  and 
it  is  a  cardinal  principle,  too  often  lost  sight  of  by  counsel,  that  error 
is  not  to  be  sought  after,  but  must  be  made  affirmatively  to  appear. 

The  defendant's  evidence  tended  to  show  that  the  obstructions  were 
formidable  though  temporary  in  their  character ;  and  the  court  charg- 
ed the  jury  that  if  they  found  them  to  be  what  the  defendant's  evi- 
dence tended  to  show  them,  and  dangerous  to  pass  over,  the  defendant 
was '  not  bound  to  remove  them ;  and  in  this  there  was  no  error.  If 
the  obstruction  is  such  that  to  remove  it  would  materially  delay  the 
traveler  in  his  journey,  and  impose  upon  him  any  considerable  labor,  no 
duty  of  removal  is  upon  him.  Besides,  his  right  to  cast  quantities  of 
earth  and  stones  into  a  washout,  or  to  cast  and  throw  material  out 
of  the  way,  and  perhaps  on  to  adjoining  land,  may  in  many  cases  be 
fairly  doubtful,  to  say  the  least.  So  unless  the  obstruction  can  be  readi- 
ly and  easily  removed  by  the  traveler,  he  is  not  bound  to  remove  it, 


Ch.  8)  PUBLIC   RIGHTS  731 

Lut  may  lawfully  travel  extra  viam,  doing  as  little  damage  as  possi- 
ble. The  obstacles  that  the  defendant's  testimony  tended  to  show  im- 
peded the  way  were  obviously  not  of  this  character;  but  the  jijry  must 
have  found  them  to  have  been  dangerous. 

It  is  further  objected  that  defendant  should  have  taken  measures  to 
have  the  road  repaired  or  have  provided  himself  another  way.  But 
no  such  duty  rested  upon  him.  It  was  the  duty  of  the  town  to  keep 
the  road  in  good  and  sufficient  repair  at  all  seasons  of  the  year;  and 
because  it  did  not  perform  that  duty,  it  did  not  devolve  in  any  part 
upon  the  defendant,  nor  impose  upon  him  the  duty  of  providing  him- 
self another  way.  The  road  was  still  a  highway,  and  the  defendant 
had  a  right  to  travel  it  as  such,  and  in  so  doing  he  was  in  the  exercise 
of  a  public  right. 

It  is  further  objected  that  these  obstructions  were  too  long  in  the 
way  to  be  deemed  temporary,  but  are  fairly  to  be  deemed  permanent. 
i)Ut  it  is  the  nature  and  character  of  the  obstruction  rather  tlian  the 
time  of  its  duration  that  is  determinative  in  this  respect.  Snow  and 
ice  are  temporary  in  their  character,  although  often  uncomfortably 
permanent  in  their  duration.  So  washouts  that  impede  and  obstruct 
travel  may  justly  be  deemed  to  be  temporary;  for  it  is  the  duty  of 
towns  to  make  them  so,  and  the  common  course  that  they  are. 

The  charge  was  justly  applicable  to  the  case  as  disclosed  by  the  evi- 
dence, and  we  find  no  error  in  it  nor  in  the  refusal  to  charge  as  re- 
quested. 

Judgment  affirmed.^" 

20  In  addition  to  the  cases  cited  in  the  opinion,  see  Arnold  v.  Holbrook. 
L.  R.  8  Q.  B,  96  (1S73) ;  State  v.  Brown,  109  N.  C.  802,  13  S.  E.  940  (1S91). 


INDEX 

[the  figures  refer  to  pages] 


AD  VERTI SEMENTS, 

Right  to  affix  to  party  walls,  236  note. 

ARTIFICIAL  WATER  COURSES, 

Rights  in,  253  Wood,  256  Mason,  261  note, 

ASPHALT, 

Rights  In,  54  note. 

ASSIGNEE, 

Liability  of,  for  breaches  of  covenants  in  leases,  3S9  Mason,  391  note. 

Of  lessee,  at  common  law,  338  Brook,  338  Thursby,  339  Sugden. 

Of  lessor,  at  common  law,  338  Brook,  338  Thursby,  339  Sugden. 

Of  part  interest  in  lease,  liability  of,  395  Conghara,  395  Holford. 

Of  part   interest  in   reversion,   rights  of,  404  Attoe,   405   Twynam,   401 

Demarest. 
Of  unsealed  instruments,  liability  of,'  410  Buckworth,  412  Hinsdale,  414 
Standen,  489  Burbank,  490  Kennedy. 
Rights  of,  419  note. 
When  must  be  mentioned  to  make  covenant  run,  341  Spencer,  342  note, 
343  Masury,  349  Purvis,  351  note,  442  Brown,  445  note. 
See  Assignment. 

ASSIGNMENT, 

Covenant  against,  when  broken,  358  Williams,  361  note. 

Covenantee's  rights,  effect  of,  on,  391  Mascal,  392  Stoddard,  393  Wills. 

Covenantor's  liability,  effect  of,  on,  383  Brett,  384  Wall,  384  Washington, 

387  Jones,  388  note. 
Of  covenantee's  rights,  378  note,  423  note,  502  Randall. 
Of  interests  in  leases  not  under  seal,  416  Bickford,  418  Cobb,  419  note. 
Of  lease,  effect  on  rent,  549  Walker. 

Of  reversion,  effect  on  rent,  558  Harmer,  559  Damren,  559  note. 
Sublease,  distinguished  from,  395  Holford,  396  Earl,  398  McNeil,  404  note. 

ASYLUM. 

Right  of,  to  use  stream,  77  Filbert. 

BRANCHES  PROJECTING, 
Right  to  remove,  3  note. 

BREACH, 

Continuing,  right  of  action  for,  391  Mascal,  392  Stoddard,  393  Wills. 
What  Ls,  384  Washington,  387  Jones,  388  note. 

BUILDINGS, 

Altering,  when  waste,  653  Kile,  655  Melms. 

Damage  to,  right  of  reversioner  to  recover  for,  143  Green. 

When  recoverable,  36  RoUe.  40  Smith,  46  Foley,  49  Charless. 
Destruction  of,  as  affecting  rent,  575  White,  577  Wattles,  579  Graves. 
Prescriptive  right  to  support  of,  36  Bonomi,  39  note. 

CITY, 

Right  of,  to  stream,  for  domestic  user,  79  Canton,  82  note. 
COMPETITION, 

Agreements  restraining,  when  run,  448  National,  506  Norcross,  510  note. 
BiQ. Rights  (733) 


734  INDEX 

[The  figures  refer  to  pages] 

COVENANTS, 

Assignee,  of  lease  with,  at  common  law,  338  Brook,  338  Thursby,  339 
Sugden. 
Of   reversion  with,   at  common  law,   338  Brook,   338   Thursby,   339 
Sugden. 
Burden  of,   do  not  run,  when,  458  Miller,   462  note,  462  Wiggins,  467 

Farmers. 
Chattels,  do  not  run  with,  420  Allen,  422  note. 
Esse,  in,  things  not,  relating  to,  341  Spencer,  342  note,  343  Masury,  349 

Purvis,  351  note. 
Tee,  conveyances  in. 

Assigns,  need  not  be  mentioned,  442  Brown,  445  note. 

Privity,  what  constitutes,  429  Morse,  431  note,  432  Hurd,  435  Horn^ 

438  note,  439  Burbank, 
What  run,  427  Pakenham,  448  National,  452  Gilmer,  455  note,  455 
Atlanta,  458  Miller,  462  note,  462   Wiggins,  464  Wooliscroft,  467 
Farmers. 
Fence,  to  maintain,  270  Bronson. 
Lessee  by,  effect  on,  of  eviction,  592  Carrell,  598  Smith. 

What  run,  352  Cockson,  352  note,  353  Mayor,  355  note,  358  note,  358 

Williams,  364  Vyvyan,  367  Gower,  369  Northern,  373  note. 
Who  may  enforce,  352  note,  355  Thruston,  358  note,  361  Vernon,  364 
Vyvyan. 
Lessor,   by,  what  run,   373  Jourdain,   374  Woodall,  376  Hollander,   379 
Thomas,  379  note,  380  Dewar. 
Who  may  enforce,  373  note.  374  Woodall,  376  Hollander,  380  Dewar. 
Liability  as  on,  in  deed  poll,  412  Hinsdale,  489  Burbank,  490  Kennedy. 
Party  wall  when  run,  471  Gibson,  475  Conduitt,  479  Southworth,  482  Craw- 
ford, 486  Lincoln. 
Rent  charge,  to  pay,  566  note. 
See  Assignee,  Assignments. 

CUSTOM, 

Easement  acquirable  by,  180  Abbott,  181  Graham. 
Profit  not  acquirable  by,  176  Smith. 

DAM, 

Lower  riparian's  right  to  have  maintained,  259  Matheson,  262  Kray. 
Upper  riparian's  right  to  maintain,  54  Embrey,  61  Dumont. 

DA3IAGES, 

Comparative,  as  element  in  granting  injunction,  23  Hennessy,  29  Madison. 
Land,  to,  how  estimated,  49  note. 

When  recoverable  by  reversioner,  140  Baxter,  144  note. 
Nominal,  disturbance  of  possession,  in,  1  Pfeiffer. 

Nuisances,  in,  32  Sturges,  35  note. 

Subsidence  of  land,  in,  40  Smith,  41  note. 

DITCHES, 

Water  in,  as  personal  property,  266  note. 

DOMESTIC  USER  OF  STREAM, 

77  Filbert,  79  Canton,  82  note. 

DRAINAGE, 

Easement  of,  209  Wood,  221  Durfee. 

License  for,  revocable,  304  Hewlins,  328  Wiseman.  ' 

EASEMENTS, 

Affirmative,  268  Rider,  270  Bronson,  273  Castner. 

Appurtenant,  not  severable,  194  Cadwalader,  197  note. 

Continuance  of,  right  of  servient  to,  253  Wood,  256  Mason,  259  Matheson 

262  Kray. 
Contract  to  give,  316  Frogley.  ^ 

Customary,  180  Abbott,  181  Graham. 


INDEX  735 

(Tte  figures  refer  to  pages] 

BASEMENTS— Continued, 

Damage  to,  by  servient,  221  Durfee,  222  note. 

Dominant  estate,  change  in  cliaiacter  of,  207  White,  209  Wood. 

Drainage,  209  Wood,  221  Durfee. 

Exclusive,  280  note. 

Extinguishment  of,  see  Extinguishment. 

Fencing,  270  Brouson,  273  Castner. 

Gross,  In,  185  Aclcroyd,  187  Boatman,  190  Standard,  lOr^  note. 

Interference  witli,  222  Attorney  General,  225  BitcUo,  227  note. 

Location  of,  220  note. 

Nature  of,  197  Hill. 

Prescriptive,  extent  of,  201  Williams,  203  Parks,  205  note. 

Repair  of,  216  Edgett,  218  Dudgeon,  219  note,  268  Rider. 

Structures,  in,  240  Shirley,  242  note,  243  Douglas. 

See  Party  Walls. 
User,  change  in  as  affecting,  207  White,  213  Gray,  215  note. 
Varieties  of,  200  note. 
Water  pipes,  for,  213  Gray. 
Way,  scope  of,  201  Howell.  201  Williams,  203  note.  205  Watson,  207  White, 

218  Dudgeon,  227  note,  228  Pittsburgh,  230  Atlantic 
Water  courses,  artificial,  in,  253  Wood,  256  Mason. 

EJECTMENT, 

For  overhanging  wire,  3  Butler, 

EMBANKMENTS. 

Obstructing  water,  liability  for,  102  note. 

EMINENT  DOMAIN, 

Effect  on  rent  of  taking  by,  585  Parks,  587  Biddle. 

EQUITABLE  ENFORCEMENT  OF  AGREEMENTS  RELATING  TO  LAND, 

Athrmative  agreement,  496  Haywood,  498  Hall. 

Benefit,  when  runs,  511  Hansard,  513  note,  513  Renals,  517  Weil,  521  note, 
521  Parker,  525  Clark,  528  note,  529  Wiufield,  531  Formby,  535  note,  535 
Van  Sant. 

Burden,  when  runs,  513  Renals,  517  Weil,  525  Clark,  538  Gollner. 

Dominant  estate)  need  for,  531  Formby,  535  note,  535  Van  Sant. 

Notice,  495  note. 

Privity,  496  note. 

Reason  for,  494  Tulk,  496  Haywood. 

Suppressing  competition,  506  Norcross,  510  note. 

When  refused,  541  McClure,  545  Loud,  546  note,  547  note. 
ESSE, 

In,  covenant  relating  to  things  not,  when  runs,  341  Spencer,  343  Masury, 
349  Purvis. 

EVICTION, 

Constructive,  when,  600  Pendleton,  606  Egerton,  610  Bass,  611  Stewart,  013 
University. 

EXTINGUISHMENT  OF  EASEMENTS, 

Abandonment,  by,  277  Moore,  280  note,  280  Crain,  286  Pratt,  291  note,  29s 

I'^tzpatrick. 
Acceptance  of  new  easement,  by.  298  Fitzpatrick,  299  note. 
Adverse  user  by  servient,  by,  293  Jennison,  295  note. 
Change  in  dominant  estate,  by,  277  Moore. 
Conduct  of  dominant   incompatible   with   easement,  by,  280   Crain,  2S2 

Dillman. 
Estoppel,  by,  295  Browne,  298  note. 
Excessive  user,  by,  287  McCullough. 
License,  by,  290  Winter. 
Merger  of  estates,  by,  299  Ritger. 
Ncinuser,  by,  277  Moore,  286  Pratt. 

Obstruction  by  servient,  by,  290  Winter,  291  Rogers,  293  Jennison. 
Parol,  by,  282  note. 


736  INDEX 

[The  figures  refer  to  pages] 

FEE, 

Covenfint  to  convey  by  lessor,  whether  runs,  374  Woodall,  376  Hollander. 

FENCE, 

Easement  obligation  to  maintain,  270  Bronson,  273  Castner. 

Obstruction  of  way,  by,  227  note. 

Equitable  enforcement  of  obligation  to,  505  Countryman. 

GAS, 

Escaping,  illness  caused  by,  when  actionable,  12  note. 
Natural,  rights  in,  136  Hague,  139  note. 

HIGHWAYS, 

Deviation  from,  729  Morey.  i 

Obstruction  of,  723  Barber. 

Ownership  of,  718  Goodtitle, 

Pasturing  cattle  on,  719  Stackpole. 

Public  use  of,  what  is,  719  Staclipole,  723  note. 

Timber  cut  from,  ownership  of,  726  Tucker. 

HEAT, 

Failure  to  furnish,  as  constructive  eviction,  610  Bass. 

INCORPOREAL  INTERESTS, 

Leases  of,  426  note,  636  Hancock,  636  note. 

INDEMNIFY, 

Covenant  to,  when  runs,  369  Northern,  373  note. 

INJUNCTION, 

Discretion  as  to  issuance  of.  23  Hennessy,'29  Madison. 
Trespass,  against,  8  Richards, 

INSURE, 

Covenant  to,  when  runs,  343  Masury,  3&1  Vernon. 

INTEREST, 

License  coupled  with,  when  irrevocable,  316  note. 

IRRIGATION, 

Streams,  use  of,  for,  54  Embrey,  64  Meng. 

LAND, 

Buildings  on,  how  far  entitled  to  support,  36  Rolls,  40  Smith,  46  Foley,  49 
Charless. 

Care,  degree  of  in  excavating,  46  Foley,  49  Charless,  52  note. 

Damages  to,  how  estimated,  46  Foley,  49  note. 
Recovery  for,  by  reversioner,  140  Baxter. 

Neighboring,  what  is,  42  Birmingham. 

Riparian,  what  is,  71  Jones. 

Subsidence  of,  when  actionable.  40  Smith,  41  note. 

Support  of,  nature  of  right  to,  36  Bon5mi,  39  note,  42  Birmingham. 
LEASE, 

Assignment  of,  distinguished  from  sublease,  395  Holford,  396  Earl,  398 
McNeil,  404  note. 

Part,  assignment  of,  395  Congham,  395  Holford. 
LEVANT  ANT)  COUCHANT, 

Defined,  164  Cole. 
LICENSE, 

Easement,  to  extinguish,  when  irrevocable,  290  Winter. 

Frauds,  statute  of,  not  within,  303  Wood. 

Interest,  coupled  with  a,  316  note. 

Irrevocable,  wben,  303  Wood,  31S  Rerick,  322  note,  331  Hnrst 

I>ease.  contrasted  with,  313  note,  316  note. 

Nature  of  interest  created  by,  ilOi  Hewlins,  309  Wood,  318  Rerick,  328 
Wiseman,  331  Hurst. 


INDEX  737 

[Tie  figures  refer  to  pages] 

LICENSE— Continued, 

Kevocable,  when,  304  Hewlins,  309  Wood,  313  Drake,  323  St.  Louis,  32S 

Wiseman. 
Revocation  of,  by  conveyance,  313  Drake. 
Riparian  rigtit,  to  extinguish,  irrevocable,  305  Liggins, 
Timber,  for  removal  of,  313  Drake. 

LICENSEE, 

Right  of  action  against  third  persons,  336  Miller. 

LOCOMOTIVE, 

Use  of  stream  to  supply,  68  Garwood. 

"MAKE  OR  SUFFER," 
498  Hall,  501  note. 

MERGER, 

Right  to  rent  lost  by,  oG6  Webb.  .509  MoMurphy,  571  Smiley,  572  Real. 
Waste,  action  of,  effect  of,  on,  6S2  Dickinson. 

MINES, 

Opening,  when  waste,  649  Gaines. 

MONEY, 

Running  of  covenant  for,  payment  of,  464  Wooliscroft,  467  Farmers. 

NECESSITY, 

Way  of,  when  ceases,  302  note. 

NEGLIGENCE, 

Buildings,  in  damage  to.  46  Foley,  119  Fitzpatrick,  120  note. 

Fences,  in  damage  to.  275  note. 

Land,  in  damage  to.  49  Charless,  52  note. 

Nuisance,  in,  29  note. 

Party  walls,  in  raising,  235  note. 

Underground  waters,  in  damage  to,  129  note.  132  Kinnaird,  134  note. 

Waste,  in,  659  Countess,  6G0  note,  667  Chalmers,  670  Earle,  672  Atlantic. 

NOTICE  TO  ADJACENT  OWNER,      ' 

When  necessary  in  excavating,  49  Charless,  52  note. 

NUISANCE, 

Action  for,  by  whom  maintainable,  11  Kavanagh. 

Dust  as,  21  note. 

Hospital  as,  21  Stotler,  23  note. 

Injunction  against,  whether  discretionary,  23  Heunessy,  29  Madison. 

Negligence,  not  an  element  in,  29  note. 

Neighborhood,  character  of,  in  determining,  13  Ross,  21  note. 

Noise  as.  17  Romer,  21  note,  23  Hennessy. 

Pigpen  as,  23  note. 

Prescriptive  right  to  maintain,  32  Sturges,  35  note. 

Priority  in  location  of,  immaterial,  34  note. 

Property,  damage  to,  as,  23  Hennessy,  29  note. 

Reversioner's  right  to  sue  with  respect  to,  141  Simpson,  145  Park,  14G  note 

Saloon  as,  23  note. 

Sanitarium  as,  23  note. 

Smoke  as,  13  Ross. 

Stallion,  breeding  place  of,  as,  23  note. 

VibrtTtion  as,  23  Hennessy,  32  Sturges. 

OIL, 

Rights  in,  140  note. 

PARTY  WALLS, 

Advertisements,  right  to  affix  to,  236  note. 

Covenants  relating  to,  471  Gibson,  475  Conduitt,  479  Southworth,  482  Craw 

ford,  486  Lincoln. 
Destruction,  effect  of,  on  easement  in,  242  note,  246  Sherred. 

BiG.RlGHTS — 47 


rSS  INDEX 

[The  figures  refer  to  pageaj 

PARTY  WALLS— Continued, 

Easements  in,  232  Brooks,  236  note. 

Quasi  contractual  right  to  recover  for  cost  of,  246  Sherred,  249  Spaulding, 

252  note,  485  note. 
Raise,  when  may,  232  Brooks,  235  note. 
Tear  down,  when  may,  237  Putzel. 
Windows,  insertion  In,  236  note. 

PONDS. 

Rights  in,  97  Schaefer,  99  note. 

POSSESSION, 

How  given  by  sheriff,  3  Butler. 
Injunction  to  protect,  8  Richards. 
Violation  of,  actionable,  1  Pfeiffer. 

Ann  projecting  is,  3  note. 

Branches  projecting  are,  3  note. 

Caves  projecting  are,  2  Smith, 

Wire  overhanging  is,  3  Butler. 

POWER, 

Covenant  to  supply,  when  runs.  458  Miller, 

PRESCRIPTION, 

Air,  none  in,  33  Webb. 

Nuisance,  right  to,  by,  32  Sturges,  34  note,  35  note. 

Streams,  when  right  acquired  in,  by,  73  Messinger,  74  note,  86  note,  88 

Stockport. 
Underground  waters,  none  in,  124  note. 

PRIVITY, 

\Miat  constttutes,   429  Morse,  431  note,  432  Hurd,  435  Horn,  438  note, 
439  Burbank. 

PROFIT, 

Appurtenant,  167  Hall,  173  Huntington,  176  note. 
Assignment  of,  153  Mountjoy,  155  Tottel. 
Customarj',  none,  176  Smith.  ' 

Division  of,  163  Rotherham,  164  Cole,  167  Hall. 
Easement,  distinguished  from,  177  Race. 

Exclusive,  154  Dowglass,  155  Grubb.  157  note,  158  Caldwell.  162  note. 
Extent  of,  153  Mountjoy,  154  Dowglass. 
.Extinction  of,  163  Rotherham,  164  note,  164  Cole,  167  Hall. 
Grant  of,  155  Tottel. 

Gross,  in.  155  Grubb.  164  Drury,  176  note. 
Prescription  for,  154  Dowglass,  154  note. 

Severance  of,  from  dominant  estate,  164  Drury,  164  note,  165  Phillips, 
167  Hall. 

PROHIBITION  STATUTE, 

Effect  of,  on  rent  of  hotel,  589  Lawrence. 

PROPERTY, 

Damage  to,  as  nuisance,  23  Hennessy, 
Real,  defined,  3  Butler. 

QUASI  CONTRACT, 

Right  to  recover  for  cost  of  party  wall,  in,  246  Sherred,  249  Spaulding,  252 
note,  485  note. 

RAILROAD, 
.     Liability  of,  for  obstructing  water,  102  note. 

Right  of  way,  nature  of,  228  Pittsburgh,  230  Atlantic 
Right  to  use  water  for  locomotives,  68  Garwood. 

RENT, 

Actions  for,  562  Har\'ey,  563  Wilston,  564  Loyd,  565  St.  Geo.  II,  565  Anon. 
Apportionment  of,  575  White,  577  Wattles,  632  Anon.,  632  Emmott,  633 
Anderton,  635  Salmon. 


INDEX  739 

tTbe  figures  refer  to  pages] 

RENT— Continued, 

Assignment  of,  561  Ards,  562  note. 

Attornment,  552  St.  4  Anne. 

Chattels,  payment  for  use  of,  not,  632  Eramott,  633  Anderton. 

Constructive  eviction  suspending,  COO  Pendleton,  GOtJ  Egerton,  610  Bass, 

611  Stewart,  613  University. 
Contract  debt  not,  637  First,  638  note. 
Covenant  to  pay,  when  runs,  364  Vyvyan. 
Destruction  of  premises  extinguishing,  575  White,  577  Wattles,  579  Graves, 

581  note. 
Distraint  for,  549  note,  565  Anon.,  633  Anderton,  636  Hancock. 
Divided  when,  561  Ards. 

Eminent  domain,  taking  by,  extinguishing.  585  Parks,  587  Biddle,  597  note. 
Exclusion  from  premises  suspending,  596  Pridgeon. 
Extinguishment  of,  566  Webb,  569  McMurphy,  571  Smiley,  579  Graves,  585 

Parks,  587  Biddle. 
Guaranty  of  payment  of,  420  Allen,  424  Walsh. 
Kinds  of,  distinguished,  549  note. 

Lessee,  assignment  by,  383  Brett,  384  Wall,  549  Walker. 
Lessor,  eviction  by,  suspending,  591  Cibel,  502  Rolle,  592  Carrell.  593  Page, 

593  Smith,  593  note,  598  Smith. 
Merger,  loss  of,  by,  566  Webb,  509  McMurphy,  571  Smiley,  572  Beal. 
Not  divisible  in  time,  552  Bank,  556  Rockingham,  558  note. 
Prior  valid  lease,  effect  of,  on,  617  Neale,  622  Lawrence,  624  Friend,  627 

Moore,  628  Smith. 
Prohibition  statute,  effect  of,  on  rent  of  hotel,  589  Lawrence. 
Reserved  on  lease  of  lessor's  entire  interest,  562  Newcombe,  5G3  Wilston, 

.564  rx)yd,  565  Anon.,  569  McMurphy,  571  Smiley. 
Reversion,  assignment  of,  effect  on,  55S  Hnrmer,  5.~9  Damren,  559  note. 
Superior  title,  eviction  by,  suspends,  581  Fitchburg,  583  Seabrook. 
Suspension  of,  581  Fitchburg,  583  Seabrook,  591  Cibel.  592  Rolle,  593  Page. 

593  Smith,  596  Pridgeon,  600  Pendleton,  610  Barr,  613  University. 
Trespass  by  lessor,  effect  of,  on,  594  Bennett. 
AVhen  due,  552  Bank,  554  note. 

REPAIR, 

Covenant  to,  3S0  Dewar,  383  Brett.  i 

Easement  obligation  to,  268  Rider. 

• 

REVERSION, 

Assignment  of  part  interest  in,  404  Attop,  405  Twynam,  407  Demarest. 
Of  unsealed  lease,  right  of  assignee  of,  416  Bickford,  418  Cobb. 

REVERSIONER, 

Recovery  by,  for,  damage  to  building,  143  Green. 
Damage  to  land,  140  Baxter. 
Diversion  of  water,  144  note. 
Nuisance,  141  Simpson,  145  Park,  146  note,  147  Miller, 

RIPARIAN  LANT), 
What  Is,  71  Jonea, 

SAW-MILL, 

When  may  discharge  In  stream,  S3  Hayes,  86  note,  87  note. 

SEMIFLUID  SUBSTANCES, 
Right  of  support  in,  54  note, 

STREAMS, 

Abandonment  of  rights  in,  259  Matheson,  262  Kray. 

Arid  states,  law  in,  relating  to,  71  note. 

Covenant  regulating  use  of,  432  Hurd,  435  Horn,  438  note. 

Dam,  right  to,  61  Dumont, 

Detention  of,  61  Dumont,  63  note,  262  Kray. 


740  INDEX 

[The  figures  refer  to  pages] 

STREAMS— Continued, 

Diversion  of,  58  Webb,  68  Garwood,  69  Gillis,  71  note,  259  Matheson. 
Action  by  reversioner  for,  144  note. 

Eight  of  lower  riparian  to  liave  continued,  256  Mason,  259  Matheson, 
262  Kray. 

Docking,  right  to  use  for,  712  Pollock,  715  note. 

Domestic  user  of,  77  Filbert,  79  Canton,  82  note. 

Evaporation  of,  by  user,  54  Embrey,  61  Dumont. 

Fisliing,  public  right  of,  in,  709  Cobb.  716  Willow,  717  note. 

Injunction,  to  prevent  diversion  of,  76  note. 

Irrigation,  use  of,  for,  54  Embrey,  64  Meng. 

Locomotives,  use  of,  for,  68  Garwood. 

Navigation  in,  public  right  of,  701  Brown,  706  Thunder,  706  note,  709 
Cobb,  712  note. 

Nonriparian,  use  of,  by,  68  Garwood,  69  Gillis,  71  note,  71  Jones,  88  Stock- 
port, 92  note. 

Pollution  of,  S3  Hayes,  86  note,  87  note. 

Prescriptive  rights  in,  73  Messinger,  74  note. 

Riparians,  who  entitled  as,  71  Jones.  88  Stockport,  92  note. 

Right  in,  nature  of,  54  Embrey,  58  Wpbb,  64  Meng,  75  New  York,  76  note. 

Underground,  rights  in,  135  Hale,  136  note. 

SUBLEASE, 

Distinguished  from  assignment,  395  Holford,  3S6  Earl,  398  McNeil,  404 
note. 

SURETY, 

For  rent,  liability  of,  420  Allen,  424  Walsh. 

TAXES, 

Covenant  to  pay,  when  runs,  367  Gower,  369  note. 
Scope  of,  3S9  Mason,  393  Wills. 

TICKET, 

As  license,  309  Wood,  313  note. 

TIMBER, 

Cutting,  when  waste,  644  Owen,  646  Davis.  649  note,  678  Udal,  684  Scher- 
merhorn,  688  Bowles,  690  Rolle,  691  Clement,  693  note,  694  Lushingtpn. 

TRAINS,  • 

Covenant  to  stop,  when  runs,  452  Gilmer. 

TRESPASS, 

Injunction  to  prevent,  8  Richards. 

To  realty,  what  is,  1  Pfeiffer,  2  Smith,  3  note. 

WASTE, 

Altering  buildings  as,  653  Klie,  655  Melms. 

Cutting  timber  as,  644  Owen,  646  Davis,  649  note. 

Defined,  639  Coke. 

Equitable,  what  is,  688  Bowles,  690  Rolle,  691  Clement,  693  note. 

Injunction  against,  678  Anon.,  679  Perrot,  681  Klie,  682  note,  690  Rolle, 

691  Clement,  693  note. 
Life  tenant,  when  liable  for,  661  Cartwright,  672  Atlantic,  691  Clement, 

693  note. 
Meliorating,  642  Cole. 

Merger,  as  affecting  liability  for,  682  Dickinson. 
Mining  as,  649  Gaines. 

Negligent,  659  Countess,  660  note,  667  Chalmers,  670  Earle,  672  Atlantic. 
Nominal,  643  Keepers,  644  note. 

Permissive,  059  Countess,  661  Cartwright,  662  Morris. 
Products  of,   right  to,   678  Udal,  684  Schermerhorn,   687  Bateman,  694 

Lushington,  697  note,  698  Barrington. 
Tail,  tenant  in,  not  liable  for  equitable,  688  Bowles. 


INDEX  741 

[Tbe  flgurea  refer  to  pages] 

WASTE— Continued, 

Will,  tenant  at,  liability  for,  659  Countess,  660  note,  667  Chalmers. 
Years,  tenant  for,  liability  for,  662  Morris,  670  Earle,  672  note,  690  Eolle. 

WATER, 

Covenant  to  supply,  when  runs,  373  Jourdain.  455  Atlanta. 
Ditches,  in,  as  personal  property,  266  note. 
Divert,  license  to,  when  irrevocable,  305  Liggins. 
Flood,  obstruction  of,  102  note.        .  ' 

Rights  in,  99  Thompson. 
Pipes,  easement  to  use,  213  Gray. 
Right  to,  acquirable  by  custom,  177  Race. 
Surface,  artificial  structures  affecting,  116  Hurdman,  119  Fitzpatrick. 

Concentration  of,  109  Yeres,  111  note,  111  Manteufel,  113  note. 

Diversion  of,  113  note,  114  Bowlsby. 

Flood,  distinguished  from,  99  Thompson.  102  note. 

Negligence  in  changing  course  of,  119  Fitzpatrick,  120  note. 

Obstructions  of,  103  Barkeley,  107  Gormley. 

Ponds,  not,  97  Schaefer,  99  note. 

Streams,  distinguished  from,  93  Eulrich,  95  note,  95  Macomber,  97 
note. 
Underground,  diversion  of,  121  Acton,  124  note,  125  Meeker. 

Pollution  of,  132  Kinnaird,  134  note. 

Reasonable  use  of,  125  Meeker,  129  note,  130  Merrick,  131  note. 

Streams,  rights  in,  135  Hale,  136  note. 
WAY, 

Easement  of,  departure  from,  218  Dudgeon. 

Extent  of.  201  Howell,  201  Williams,  205  Watson.  207  White. 

Interference  with,  by  servient,  221  note,  222  Attorney  General,  225 
Bitello,  227  note. 

Railroad,  22S  Pittsburgh,  230  Atlantic 
See  Extinguishment  of  Easements. 
WINDOWS, 

In  party  walls,  236  note. 

WIRE, 

Overhanging,  ejectment  for,  3  Butler. 


■VTtBT  PUBLISHIMa  CO.,  FBIMTXR8,  BT.  PAUIi,  UHTK. 


D     000  322  457     3 


